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ADEQ PIO fired

After ex-employee's comment critical of agency posted.

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ADEQ HEAD KEOGH: Downplayed disappearance of critical comment from web, defended agency's reorganization.
  • ADEQ HEAD KEOGH: Downplayed disappearance of critical comment from web, defended agency's reorganization.

On May 8, the Arkansas Department of Environmental Quality fired its public information officer, Kelly Robinson. A week earlier, Robinson's personnel file contained no negative evaluations or disciplinary action over the course of her 13 years of employment at ADEQ. But starting May 3, her supervisor, ADEQ Communications Director Donnally Davis, began writing Robinson up for a series of alleged infractions.

Robinson's personnel records, obtained through a Freedom of Information Act request to ADEQ, state that she was terminated for "insubordination and failure to follow policy" and reference "a pattern of withholding important information and sharing that information amongst other ADEQ employees."

However, the records only contain mention of a single incident, on May 2, in which Robinson allegedly withheld information from her supervisor. That day was the deadline for public comment on a new water quality regulation being considered by the Pollution Control and Ecology Commission, the body that oversees the ADEQ.

In the runup to the May 2 deadline, dozens of environmental advocates and organizations submitted comments opposing "Regulation 37," which would establish a credit-based trading program to regulate nitrogen and phosphorus from agricultural runoff and other activities. (Trading programs are a common means of regulating pollutants through economic incentives, with carbon cap-and-trade perhaps the best-known example.) Most of the comments expressed concern that the standards for the proposed nutrient water-quality trading program were too vague and lacked numerical targets.

But one critical comment, submitted May 2 by former ADEQ employee Ellen Carpenter, also marshaled publicly available figures to question whether the agency was capable of establishing a complex new system.

"The proposed draft Regulation No. 37 introduces an entirely new statewide trading program without considering the costs in terms of resources and staff to ADEQ to administer such a program," Carpenter wrote. "ADEQ has undergone significant reorganization in the past two to three years. New management positions have been created in the Director's Office, most of the senior managers who were career employees either are no longer with the agency or are no longer in the program area over which they have extensive experience, and a large number of staff positions occupied by those who perform the agency's work on the ground went unfilled during 2017[.]"

Carpenter cited budget figures, including a 50 percent decline in penalties assessed by ADEQ since Director Becky Keogh assumed leadership in 2015. Penalties declined from $662,000 in FY 2015 to $328,000 in FY 2017, according to the state's budget transparency website. Carpenter attached screenshots to her email illustrating these and other numbers, including an apparent increase in the number of employees earning high salaries between 2015 and 2018.

"In 2015, five employees of ADEQ made more than $85,000/year (the director, chief deputy director, deputy director, and two career employees). In 2018, 13 employees now make over $85,000/year. Of these 13 employees, it appears that only 2 have worked more than 10 years at ADEQ," Carpenter's comment said. As of June 22, the state transparency website shows 14 employees that make over $85,000 annually.

"Although I hope I am wrong, it appears that a significant portion of ADEQ's working staff might have been sacrificed to support the management reinvented at ADEQ since 2015," Carpenter continued. The point of including such information in her comment on Regulation 37, she said, was to raise questions about the agency's capacity to implement a new program. "ADEQ has no experience with any trading program and creating a trading program before understanding the staffing requirements and costs ... places the cart before the horse," she wrote.

Carpenter's comment didn't mention the names of specific employees, but it hinted at a complaint circulating among some ADEQ staffers for years: That veteran employees have been replaced by individuals with personal connections to Governor Hutchinson's office or the Republican Party of Arkansas. For example, Senior Deputy Director Julie Linck, the agency's second-in-command, is married to Kelley Linck, a former Republican state representative now serving as legislative affairs chief for the Department of Human Services. Davis, the ADEQ communications director, is married to J.R. Davis, the governor's communications director. Director Keogh is the sister-in-law of Doyle Webb, the chair of the state GOP.

***

As public information officer, Robinson was responsible for receiving comments and posting them to the ADEQ website. She received Carpenter's in her inbox May 2, along with 30 or so others. All were posted online over the course of the day.

What happened next is a matter of dispute. A narrative by Davis included in Robinson's termination documents concludes that Robinson was aware of the potentially sensitive nature of the comment, yet intentionally withheld that information from her supervisor. Instead, Davis said, Robinson surreptitiously told another ADEQ employee about Carpenter's comment. Davis appears to have learned about the comment only later that afternoon, after which she consulted with her supervisor, Julie Linck.

The next morning, May 3, Davis called Robinson into her office, demanding to know if she'd shared the comment with others. "When asked by her supervisor about the situation, Ms. Robinson lied," Davis' written narrative says. "Ms. Robinson was provided the opportunity to explain her actions, but she chose to keep the truth from her supervisor. ... Her actions were both intentional and insubordinate."

Robinson, who is contesting her termination, said this is false. She maintains she was unaware of the details of Carpenter's comment throughout the day.

"I was doing what was in my job description," she told the Arkansas Times. "As I received comments, I'd post them to the website." Robinson said she would always skim comments for profanity but wouldn't review them closely; her job was to ensure the comments were made public, not to vet them for content. "I did not have the time nor the luxury to read every public comment that came through my email," she said.

Carpenter's May 2 comment did stand out, she said, because it was lengthy — 27 pages including attachments — and because Carpenter herself had been a key player in water-quality regulations. Before her retirement in 2016, Carpenter was the chief of ADEQ's water division. Thus, Robinson said, she contacted the ADEQ's office of water quality to let their director know a potentially significant comment was coming down the pike from Carpenter. Robinson said she also notified Charles Moulton, the administrative law judge for the Pollution Control and Ecology Commission, which is responsible for approving new regulations such as the proposed nutrient trading program.

Robinson said she did not lie when Davis confronted her later. Communicating with Moulton and ADEQ staff about incoming public comments was a routine part of her job, she explained. "When she asked me, 'Who did you tell about Ellen's comments?' ... I thought she must be talking about somebody in the media. And I said, 'Nobody, no one.' " Davis took this as evidence of deception.

On the afternoon of May 2, not long after Davis became aware of the situation, all the public comments on Regulation 37 disappeared from the ADEQ website for several hours. Carpenter said she discovered this when she attempted to print off her comments later that evening. Robinson said Davis, along with Linck and a member of the agency's IT staff, met after reading the comment on the afternoon of May 2. "What they did behind closed doors, I don't know ... but the public comments all came down," Robinson said. The comments reappeared by the next morning.

Asked whether someone at the agency had temporarily removed the comments, ADEQ Chief of Staff Mitch Rouse said their disappearance was due to agency staff's reviewing the timeliness of the comments. "It was also because a lot of our IT staff was out, and so we didn't have the knowledge of how we usually do that operation," Rouse said in an interview. "The next day when our IT staff came in ... all those comments were put back online."

Director Keogh said in an interview that she was not in the office May 2 and did not see any of the Regulation 37 comments until later. However, she downplayed the significance of their temporary absence. "My understanding was comments were back online ... very shortly after the start of business the next day," she said. "Honestly ... that's a fairly new practice of the agency, I believe ... to make sure the comments are posted during the comment period itself, rather than waiting until the end of the comment period."

Carpenter said she printed off a screenshot of the website at 6 p.m. to document the temporary absence of the comments. "I just had a feeling that — they were up, they were down and somebody was going to get in trouble for posting my comments," she told the Arkansas Times.

Over the next several working days, Robinson accumulated a series of disciplinary actions. On May 4, Davis wrote her up for the public comment incident. The following Monday, May 7, Davis wrote her up for speaking again to Moulton after Davis had allegedly told her not to do so. On Tuesday, May 8, Davis wrote her up for sending out responses to two FOIA requests without Davis' approval. (The agency's media protocol explicitly lists responding to FOIA requests as a duty of the public information officer, and Robinson said she responded to 25 or 30 requests per month on average. She said she'd responded to FOIAs for years without seeking approval from her supervisor first. "Never have I been asked to have those reviewed before I send them out, unless an attorney asks me to hold onto it," Robinson said. "Why, all of a sudden, did [Davis] have an interest?")

The consequence on each infraction was the same: recommended termination. The forms were presented to Robinson on May 8, and she was offered the chance to resign. She refused and was fired.

A few days later, Robinson filed a grievance with ADEQ, saying she was unjustly terminated "based on misrepresentations and falsehoods" that could affect her future employment. "I was unfairly targeted as the 'fall guy,' " due to displeasure over Carpenter's comments, Robinson wrote in an attached narrative describing her version of events. "In effect, my supervisor began 'building a case' against me over a short period of time, precipitated by the Regulation 37 public comment made by Ms. Carpenter that was viewed unfavorably by the ADEQ director's office."

Her grievance hearing was in late May and lasted for several hours. On Friday, June 22, she received a letter from Keogh saying she was upholding the termination decision. Robinson said she plans to appeal to the State Employee Grievance Appeal Panel.

Davis and Keogh said the agency was unable to comment on a personnel matter when asked in a June 5 interview why Robinson was fired. Asked in general whether ADEQ has a protocol or policy that requires flagging certain public comments for review, Davis said it was the job of the office of communications to flag important information for agency leadership. "This particular comment addressed the director's office, so it goes without saying that that should definitely be brought to the executive team's attention," Davis said.

Asked whether a comment like Carpenter's would be treated differently from others, though, both Davis and Keogh said no.

"It's just, 'You need to be made aware this is out there, it's going to be made public, definitely look at it.' ... We would make the director aware, but the comment wouldn't be treated — wasn't treated — any differently than the other 20-plus comments we received that day," Davis said.

Keogh agreed. "We had eyes on the comments as they were coming in on the website, and there was some awareness that there was information about the agency operations that ... didn't speak to the elements of the nutrient trading proposal but spoke to the organization as a whole. I have a policy — I don't really want to be surprised, and so I want to make sure that we make sure that that information is shared with me. But it was accepted as a comment on the record and is still available, I think, on the website for public review," she said.

Robinson, in a later interview, said it was not typically part of her job to alert the director's office about comments, but she agreed that Carpenter's merited being flagged. "Had I known what all was in there, I would have," she said. But she again insisted she was unaware of its full contents until later that day.

"Never, ever have I received anything less than a stellar evaluation, whether it was in the private sector or in state government," she noted. "I just find it kind of curious why, all of a sudden, I just seemed to turn into a bad person — enough to warrant termination."

Robinson said she believes the agency has implied that she colluded with Carpenter to publish potentially embarrassing information, which she found especially distressing. "I love my job. I'd planned on retiring from ADEQ in another 10 or 15 years. Why would I shoot myself in the foot like that, especially when I have a passion for what I do? ADEQ was not a stepping stone for me like it is for other people in that agency," she said.

"[Carpenter] submitted FOIAs. I was the FOIA coordinator at the time. I provided her information through the FOI request. She also got information from the [Transparency website]. ... She made her own case. I did not work with Mrs. Carpenter and I'm highly offended they insinuated that," Robinson said. "It's appalling."

***

As for the substance of Carpenter's comment, Keogh defended her reorganization of the agency.

When Hutchinson appointed her to run ADEQ in 2015, she said, "the organization was broken up into siloed programs that were difficult often for other government entities or legislators or the general public to understand. ... [I'm] trying to reduce some of the barriers internally to be able to deliver our programs more effectively, to modernize what we do and to ensure that we're using the best science."

Keogh had worked at ADEQ before becoming director, including a 10-year stint as deputy director under former Gov. Mike Huckabee from 1996 to 2006. At the time of her most recent appointment, she was working in Houston for BHP Billiton, a multinational mining and petroleum company.

Before Keogh took over, ADEQ had 12 divisions, each headed by a "chief" that reported to one of two deputy directors. Keogh oversaw the consolidation of several divisions — solid waste, hazardous waste, mining — into a single Office of Land Management and reorganized the top level of management so that the division chief positions were replaced by "program directors" reporting to her. Such a structure was consistent with changes in other states' environmental regulations and the federal Environmental Protection Agency, she said.

Carpenter, though, said more has changed at ADEQ than the management structure: Many senior employees themselves left. She wrote that out of 11 division chiefs at ADEQ in 2015 (there was one vacancy at the time), eight are no longer employed with the agency.

Asked by email what accounted for such high turnover among senior staff, Davis said, "The division chief vacancies were a result of retirement, relocation, or opportunities at other state agencies and private industries. These vacancies allowed ADEQ to reorganize the structure of the agency to better align programs with statutory and federal funding streams." Davis and Keogh both said ADEQ now has greater flexibility to allocate staff and resources to programs where they're most needed.

Carpenter's comment also said 84 out of about 400 positions appropriated for ADEQ were unfilled as of Jan. 1, 2018, according to an FOIA request. "The unfilled positions included inspectors, engineers, ecologists, enforcement analysts and administrative staff, among others. The positions and numbers changed from 2017 to 2018, but both lists ... included the type of staff one might think of as doing the actual work of the agency," she wrote. Carpenter said the agency saved some $3.5 million by not filling those positions and questioned whether that helped pay for upper management.

Davis said the agency's employment cap, which is set by the governor's office, is actually 365, not the 405 positions formally appropriated by the legislature. Writing June 1, she said ADEQ has 346 employees. "We have approximately 20 positions that are being advertised or have closed that will be hired soon," she added. Turnover at the agency is low, she said — about 14 percent.

Keogh acknowledged the unfilled positions saved the agency money; she placed the figure at "roughly $2.5 million in salary savings over a two-year cycle." But she said it was appropriate for ADEQ to budget conservatively in recent years, given recent talk of declining federal grants from the EPA under the Trump administration. (So far, severe budget cuts haven't materialized.) Keogh also claimed the salary savings allowed ADEQ to increase pay for engineers and other technical staff without greater cost to taxpayers. However, figures provided by Davis show the average employee gross salary declined slightly over the past five years, from $47,106 in FY 2013 to $46,110 in FY 2018.

As for the 50 percent drop in penalties assessed on polluters, Keogh said that shouldn't be interpreted as a reduced commitment to environmental protection. "We do not believe that penalties equate to environmental compliance," she said. "Our ability to communicate what the requirements are and to be helpful to those that are regulated [ensures] that when they get permits, they understand them, [which] leads ultimately to better compliance for the state."

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