Merced County's former education chief: What did he know? When did he know it?

Statute of limitations saves Lee Andersen in asbestos exposure case

vpatton@mercedsunstar.comNovember 5, 2011 

Merced County's former education chief broke state law by knowing that high school students were exposed to cancer-causing asbestos, but waiting more than a year to notify law enforcement.

Those accusations have been lobbed against former Merced County Office of Education Superintendent Lee Andersen by a Stanislaus County District Attorney's Office examination of his involvement in the Firm Build asbestos case. Stanislaus County prosecutors said in a report that Andersen would have been charged with a misdemeanor had the one-year statute of limitations not run out.

Andersen, in a letter to the Sun-Star, insisted he had acted quickly to look into the asbestos exposure. He told the grand jury that he wasn't obliged to report it "because it was in the past." He asked the people of Merced to keep an open mind in reading the report.

The critical report is the latest chapter in the Firm Build saga. Three former executives of the defunct nonprofit -- Rudy Buendia III, Patrick Bowman and Joseph Cuellar -- have been charged with numerous federal and state asbestos exposure violations. They are suspected of using high school students to remove asbestos from a renovation project at Castle Commerce Center, called the Automotive Training Center from September 2005 to March 2006.

Nine students are named as victims in the Merced County District Attorney's criminal case against Bowman, Buendia and Cuellar, but investigators say dozens may have been exposed to the hazardous substance.

MCOE had contracted with Firm Build to provide job training to high school students. Bowman, Buendia and Cuellar are suspected of using the students to remove asbestos from the Automotive Training Center building at 2245 Jetstream Drive under the guise of involving at-risk students in work experience and job training programs.

The defendants were in key oversight positions with Firm Build on the Automotive Training Center project. Bowman was Firm Build's board president, Buendia was the nonprofit's project manager, and Cuellar was administrative manager.

The three were first arrested in September 2008 on charges of grand theft, falsifying corporate reports, perjury and forgery, after the Merced County District Attorney's Office had launched a June 2007 financial investigation into Firm Build.

Later, they were arrested on asbestos exposure charges in May 2010. Stanislaus County prosecutors allege Andersen knew about the asbestos exposure by October 2008, but didn't notify law enforcement until March 2010, according to the Stanislaus County report.

Merced County District Attorney Larry Morse II, in coordination with the state Office of the Attorney General, forwarded the allegation against Andersen to the Stanislaus County District Attorney's Office. Morse said he asked Stanislaus County prosecutors to review the case to avoid a possible conflict of interest because Andersen had spoken to him about the asbestos exposure allegations. Morse could have been called as a potential witness because of that conversation.

Written by Chief Deputy District Attorney David Harris and signed by Stanislaus County District Attorney Birgit Fladager, the report is based on testimony Andersen gave to the Merced County grand jury in November 2010 and Merced County District Attorney's Office investigative reports. Buendia, Bowman and Cuellar were all indicted on charges by the federal and county criminal grand juries.

Harris declined to be interviewed for this story, saying all questions about the report should be directed to Morse. The Sun-Star learned of the Stanislaus County District Attorney's Office report in March, but it remained confidential because Judge John Kirihara granted a defense motion, sealing the grand jury transcript. The Sun-Star's attorneys filed a motion to unseal the 3,000-page grand jury report, and Kirihara reversed his decision in August. The grand jury transcript and Stanislaus County District Attorney's Office report detailing Andersen's alleged failures are now public documents.

Violation of mandated reporter law?

The nine victims, who were about 16 and 17 between 2005 and 2006, allegedly removed asbestos from the Automotive Training Center, without the required safety equipment, on numerous occasions, under the direction of Firm Build.

Harris and Fladager claim Andersen, 65, who retired in January after serving eight years as MCOE superintendent, broke California's mandated reporter law by not revealing his knowledge of asbestos exposure.

Called the Child Abuse and Neglect Reporting Act, the law obliges educators to report child abuse or neglect that's "reasonably suspected" to law enforcement within 36 hours of receiving the information. Under the law, neglect includes any act endangering the person or health of a child.

Any mandated reporter who fails to report an incident of "known or reasonably suspected child abuse or neglect" can be punished by up to six months in a county jail, a $1,000 fine or both, according to the state's penal code.

MCOE had been aware that asbestos, along with lead-based paint and black mold, was in the Automotive Training Center when leasing it from the county in June 2005, before students had even been working there. Andersen signed the lease for the Automotive Training Center building, and the lease document clearly stated the presence of asbestos in the structure. "Therefore, by the very plan that (the) building was to be put to use, the MCOE was on notice that students could be exposed to asbestos unless steps were taken to abate the hazardous materials," the report states.

An electrician who worked at the Automotive Training Center in February 2006 told a manager of Volvo Rents (an equipment rental company with items at the job site) that he had noticed the asbestos at the site, with students working there. The rental equipment was pulled from the Automotive Training Center on March 27, 2006, according to the report.

Stephon Gold, an electrician who had also been at the Automotive Training Center site, reported to the Merced County District Attorney's Office in November 2009 that he had seen asbestos in the building back in February 2006, along with several high school students working there. The electrician's claims launched the Merced County District Attorney's Office investigation into the asbestos allegations.

However, Stanislaus County prosecutors say Andersen knew of the students' asbestos exposure in October 2008, a year before Gold notified law enforcement. And Andersen did nothing, outside notifying MCOE's attorney and his staff. "The equipment rental company relayed this conversation (about the asbestos) to a third party, who in turn reported it to Lee Andersen (in 2008)," the Stanislaus County report states.

But Andersen never revealed to law enforcement what he knew about the asbestos exposure until March 22, 2010, several months after the Merced County District Attorney's Office had launched its investigation. That day, Morse and Pat Lunney, chief investigator for the Merced County District Attorney's Office, met with Andersen to discuss how MCOE could contact students who had possibly been exposed. During that conversation, Andersen surprised Morse and Lunney by admitting he had known about the students' asbestos exposure since October 2008.

In addition, Andersen admitted to the county grand jury, under questioning from prosecutor Matthew MacLear, that he was first notified about the asbestos exposure in fall 2008 by Tom Clendenin, the "third party" referred to in the Stanislaus County District Attorney's report.

Clendenin was a Weaver Union School District trustee who had heard about the asbestos allegation from a Volvo Rents employee. Andersen told grand jurors he passed on the tip from Clendenin to Eva Chavez, MCOE assistant superintendent for human resources. Chavez followed up on the claim and confirmed the exposure with a Volvo Rents manager. "We concluded that there was possible asbestos exposure," Andersen testified.

Andersen told grand jurors that Chavez reported the asbestos exposure to MCOE's attorney, David Soldani. Andersen also testified that Soldani indicated he would contact the Merced County District Attorney's Office about the asbestos exposure. "And did you report that to anyone other than your attorney?" MacLear asked, during the county grand jury hearing.

"No," Andersen replied.

Morse maintains there's no record of Soldani, Chavez or anyone else from MCOE ever notifying his office of the students' exposure to asbestos, until Andersen told him on March 22, 2010. Even if Soldani was notified about the possibility of students being exposed to asbestos, Morse said, it wouldn't absolve Andersen of his personal responsibility to ensure law enforcement was notified. "If you are a mandated reporter, as Mr. Andersen clearly was, you do not discharge your duty to notify law enforcement of a potential harm to a student by telling your lawyer," Morse said. "It is a personal responsibility. Even if (Andersen) had told Mr. Soldani to report it, which the record does not reflect, that would not have discharged his duty as a mandated reporter."

Despite the gravity of the allegations against him, Andersen claimed under oath he didn't break the state's mandated reporter law by not informing the asbestos exposure to law enforcement. Because the alleged exposure happened in the past, Andersen maintains he wasn't obliged to report it. "Because it's in the past. There's no opportunity for law enforcement or the health department to intervene in order to prevent that -- to prevent that risk from students occurring," Andersen testified.

Andersen's attorney, Terry Allen, said the "absurd" lapse of time that passed between the alleged exposure and when Andersen found out about it doesn't apply under the mandated reporter law. "This statute wasn't designed to lead to the prosecution to people. It's designed to prevent ongoing abuse," Allen said.

Even though the lease agreement stated asbestos was in the building, Andersen relied on MCOE staff under his authority to address the problem, Allen said. "I don't know that when (Andersen) did have a suspicion there was asbestos (in the building), that he had any duty to take any action, other than to rely on his people," Allen said.

Harris and Fladager believe Andersen clearly violated state law by not reporting the asbestos exposure as soon as he learned about it. "When Lee Andersen was told by a third party in 2008 that students had been exposed to asbestos at the Automotive Training Center job site, he delegated his mandated task to investigate the matter to a lower-ranking MCOE employee. When that employee reported back to Andersen that the report was accurate, Anderson failed to comply with (the state's mandated reporter law)," the Stanislaus County District Attorney's Office report states. "Andersen, by law as a mandated reporter, was in possession of information indicating to a reasonable person that students' health and safety had been endangered. Andersen's explanation to the grand jury that he thought he only had to report contemporaneous harm is not supported by the statute."

Andersen's response to the allegations

The Sun-Star contacted Andersen seeking a response to the Stanislaus County District Attorney's Office report, but he declined to be interviewed.

Andersen did send a letter to the Sun-Star, in which he maintained he acted quickly to look into the asbestos exposure and "had key staff do the same" after hearing about it in October 2008 (Andersen's entire letter is included with the online version of this story). "When we received information indicating that exposure might have happened, we took immediate action to inform the DA's office," Andersen wrote in the letter.

During a brief telephone conversation with the Sun-Star, Andersen described being "devastated" after learning about the students' asbestos exposure. "I felt like I'd been punched. It's kind of an educator's, really anyone's, nightmare," he said.

When asked to elaborate on the Stanislaus County prosecutors' allegations and what he knew about the asbestos exposure, Andersen declined, and referred to his letter. "I have not had the chance to respond in any detail to legal charges and/or indictments, including the opinions of the Stanislaus County DA's Office. It wouldn't be proper or constructive for me to try to do so in the media or community conversations," Andersen wrote in his letter.

Anderson did say he hopes Merced County residents will keep an open mind when reading the report and not jump to conclusions. "I would hope that people would read that document with a critical perspective and take into consideration all of the relevant information that is available to them," he told the Sun-Star.

Morse said he's "frankly shocked" by Andersen's claim of taking "immediate action" to inform the district attorney's office after finding out about the students' asbestos exposure. "The evidence would suggest that (Andersen's) statement simply is not true," Morse said. "There's nothing to indicate that there was any effort to contact us about this."

Morse said he disagrees with Allen's interpretation of the state's mandated reporter law. "With all due respect, he's just wrong," Morse said.

For example, Morse said if a child is molested by an uncle who later moved from the area, even if a teacher finds out about the incident a year later, under the state's mandated reporter law the teacher must still report the crime to law enforcement.

In Andersen's case, even though the alleged asbestos exposure happened in 2005-06, and he found out about it in 2008, as MCOE superintendent and an educator he was still obligated to notify law enforcement. "The fact is the harm that occurred to these kids, we may not know about for decades," Morse said. "The nature of asbestos exposure is it can lay dormant for years or decades before it manifests itself."

The Sun-Star placed calls to Soldani, MCOE's attorney, requesting comment about the Stanislaus County District Attorney's Office report and the claims Andersen broke state law. Those calls weren't returned by Friday's press deadline.

Nathan Quevedo, MCOE's spokesman, sent a statement to the Sun-Star on behalf of the district. "The incidents described in the report relate to Dr. Andersen, the previous Merced County superintendent of schools. Dr. Andersen is in the best position to speak for himself in regard to this matter," Quevedo wrote in the statement.

MCOE is establishing new mandated reporter procedures, Quevedo said, so that all Merced County schools employees are informed of their responsibilities as mandated reporters.

Quevedo said MCOE's new initiative is in response to recommendations from a multiyear review of child abuse reporting compliance by both schools and county agencies by the Merced County Civil Grand Jury, not the Stanislaus County District Attorney's Office report. "Since MCOE is the fiscal oversight agency for all 20 school districts, each W2 form will have attached information detailing the responsibilities of school employees as mandated reporters," Quevedo said. "In addition, MCOE will add a component of mandated reporting to various trainings to assist school employees with understanding the complexities and nuances of the mandatory reporting rules and processes."

The case against Firm Build

The federal and Merced County cases against Buendia, Bowman and Cuellar are pending and trial dates have yet to be set. All three men have steadfastly denied the allegations and have pleaded not guilty.

Nine child endangerment counts were dismissed against each of the defendants earlier this year in the Merced County case, based on statute of limitations issues. But they face numerous asbestos exposure and hazardous waste disposal charges that could put them behind bars for more than 20 years.

Defense attorneys are trying to dismiss the case against their clients.

According to the Stanislaus County District Attorney's Office report, an expert witness said that by using students instead of a professionally licensed company to remove the asbestos, Firm Build saved about $50,000.

State and federal laws explicitly limit asbestos removal to personnel who have been adequately trained and properly equipped with special safety gear and clothing. The students at the Automotive Training Center supposedly demolished the asbestos tiles with hammers and other tools. Some students reported the asbestos dust was so thick inside the building, they sometimes had to leave for fresh air. "It was the worst kind of asbestos exposure, and all we can figure is this was an effort to cut corners cost-wise," Morse said. "It went undetected and unreported at least for years. On some levels, it seems (Firm Build) almost succeeded in getting it done and using the kids and not being held accountable."

Can Andersen still be held responsible?

Stanislaus County District Attorney's Office prosecutors believe Andersen broke the mandated reporter law, but he can't be prosecuted because the one-year statute of limitations on the law has expired. As a result, chances are he'll never face any criminal penalties.

Andersen should have immediately reported the asbestos exposure in 2008, the first occasion he claims to have heard about it, according to the report. But he didn't report the exposure to law enforcement until March 2010. And because of the statute of limitations on the law, Andersen couldn't be prosecuted after 2009.

"The accusation that Mr. Andersen, a 'mandated reporter' pursuant to the Penal Code, failed to comply with legal obligations designed to protect children under his care -- I find this accusation to be true," Harris wrote. "However, due to the negligent, careless and/or derelict acts of Mr. Andersen and other employees of MCOE (and certain other agents), he cannot be prosecuted for this offense because the statute of limitations has expired."

Morse said the state, to his knowledge, has no plans to pursue a case against Andersen. Federal officials haven't expressed any interest in doing so. "From our standpoint, that's the end of it," Morse said.

Perhaps the larger question is whether Andersen and MCOE could be sued civilly by the nine students, particularly if they develop any health issues related to asbestos exposure.

When asked whether he's concerned about the possibility of being sued in civil court, Andersen replied, "Whether it happens or not is out of my control."

Buendia, Cuellar and Bowman remain free on bail.

Managing Editor Victor A. Patton can be reached at (209) 385-2431 or vpatton@mercedsun-star.com.

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