| 1.) MAN SPRAYED in 2003 and FILES A LAWSUIT
AGAINST THE CITY |
Emmett Clifford was sprayed by a Health Department spray
truck at close range as he drove in his neighborhood in October of 2003.
He alleges he lost 50% of his lung capacity as a result. He filed a lawsuit
against the city and the chemical company. (Clifford vs Metropolitan Board of
Public Health Docket #04C2963, Circuit Court of Davidson County, TN and Clark
Mosquito Control Products). Clarke Mosquito Control Settled with the man and in September 2008 a judge in Nashville ruled that the driver breached his duties and was negligent. Click here to learn more.
2.) TWO MEN SPRAYED in 2004 FILE LAWSUIT AGAINST THE CITY In 2004, three
lawncare workers were working outside with ear protection on while a spray truck
came down the road. The three men were overcome by the drift of the spray. They
experience red, burning skin and had to quit work. The Health Department
officials one of the men spoke with later said the spray couldn't have caused the
problems. However, burning skin is listed on the Material Safety Data Sheet as a
symptom of exposure. Two of the men have had long-term health problems related to
the spraying. They have filed a lawsuit against the city. (Moye vs Metropolitan
Board of Public Health, Circuit Court of Davidson County, TN)
3.) BOARD OF HEALTH DENIES CITIZENS THEIR DUE PROCESS RIGHTS
Nashville citizens filed an appeal of the Health Director Dr. Stephanie Bailey's
decision to spray pesticides in October 2004 and for failure to improve
protection and information for Nashville citizens. The appeal was "lost" by the
Director's office and "thrown away" by the Chair of the Board Mr. Bill Hance.
When the citizen resent the appeal letter to the Assistant Director they were
told that the letter would be provided to the Board in their packet for the
December meeting and the citizens should attend that meeting. However, when the
citizens were called upon at the meeting it was discovered that none of the Board
members received the letter in their packet. The Health Board should have
scheduled a hearing or sent it to an administrative law judge. Instead, the
appeal was denied. At every Board meeting there is normally a Metro attorney to
counsel the board. However, at this meeting there was no legal counsel present.
The three citizens sent a letter asking the board to reconsider but the
board's attorney responded saying that the December meeting WAS the hearing for
the appeal. By law, at an appeal hearing, both the petitioners and the Health
Director should have been given time to present any relevant and competent
infomation. This did not happen.
A lawsuit (Writ of Certiorari) was filed to protect their due process rights
(and yours). The Board attorney Margaret Holleman argued to deny much of the
supporting documentation the attorney for the citizens presented for the case.
Judge McCoy struck the documentation from the record and ruled against the
citizens. The Appeals Court sent this lawsuit back to Judge McCoy and stated that
the petitioners were automatically granted standing because of the failure of the
Board to inquire about standing before they denied the appeal. The Appeals Court
Judges sent the lawsuit back to Judge McCoy with instructions to reconsider her
ruling. On August 9, 2007, Judge McCoy ruled that the decision to deny the appeal
was arbitrary and capricious. (Sumner,
Snyder and Frazier vs Metropolitan Board of Public Health #05-416-II, Chancery
Court of Davidson County, TN, attorney Joseph Johnston)
In hindsight, citizens have speculated that the multitude of attempts to silence citizens and delay a fair evidentuary hearing
might have been efforts designed to protect the Health Director from the two civil suits that have
been filed by citizens who were injured. The citizens involved in the first
appeal had been complaining long before people were injured about the inadequate notification and the drivers
who were frequently reported leaving the spray on when pedestrians were clearly
visible. What happened in the years following the filing of this first appeal leads many to believe that this theory could be correct.
AFTER THE FIRST APPEAL WAS DENIED IN 2004, THE HEATH BOARD PASSED A NEW POLICY
WITHOUT PUBLIC NOTICE OR A HEARING
Metro Code clearly allows any citizen
who is affected by the Health Director's decision an opportunity to have a voice
by giving them the right to appeal the decision. However, in March 2005, the
Board passed a new policy that limits a citizen's right to file an appeal against
the Health Director. This appeared to be a direct effort to silence complaints
about the Director of Health's actions. Under attorney Margaret Holleman's advice
the Board made a change to the law illegally without public notice or a public hearing as required
by law. One significant change in this new policy is that it requires an affected person to be palpably injured by the actions of the Health Director.
4.) BOARD OF HEALTH DENIES CITIZENS THEIR DUE PROCESS RIGHTS AGAIN IN
Twenty Nashville citizens filed an appeal of the Health Director's
decision to spray pesticides in 2005 and for failure to improve notification,
protection and information for Nashville citizens. Many of the petitioners met
the requirements of an affected person under the new illegally made appeals
policy. 12 of the citizens had been directly sickened or injured by the Health
Dept's spraying. By law the Board of Health should have given them a public
hearing permitting them to present any relevant and competent infomation. Instead
the Health Board's lawyer Margaret Holleman was ready to make sure citizens would
not be heard. She blindsided citizens (who had unwisely shown up without an
attorney) by totally misinterpreting the intent of their appeal letter. Citizens
stood before the Board telling them that the lawyer was misinterpreting the
intent of the letter and pointed out they were appealing the director's decision
to spray. The Board denied citizens a hearing based on Ms. Holleman's convenient
misinterpretation of the letter rather than listening to the citizens who wrote
the appeal letter.
Not long after she successfully blocked this second appeal, Margaret Holleman was
offered a new high ranking position for the Health Director at the Nashville
Metro Public Health Department as Director of Policy Development and Analysis.
Was this her reward?
A lawsuit has been filed to protect their due process rights (and yours). Read about the simple actions 20 citizen's requested
for the public's protection. Citizens are currently seeking an appeal of a ruling made in 2008 on this case.
(Sumner, Flynn, Snyder, Wallenstein and Wood vs
Metropolitan Board of Public Health #05-2807-IV, Chancery Court of Davidson
County, TN, attorney Joseph Johnston)
5.) 28 CITIZEN FILE A THIRD APPEAL AGAINST THE HEALTH DIRECTOR IN June 2006
28 citizens filed another appeal of the Health Director's decision to spray
pesticides in June 2006. The secretary of the Health Board told the citizens that
she gave the appeal to the Board. However, attorney Margaret Holleman who was now
working for the Health Director claimed the appeal was "misfiled". This
resulted in delay of a month. Citizens wised up and hired an attorney and a court
reporter to provide a transcript of the Board meeting proceedings. The Board and
their attorney finally followed the law and turned this appeal over to an
administrative law judge.
Citizens were pleased at first until they saw the instructions that were given to
the Administrative Law Judge. The Board asked the judge to rule only on whether
the citizens were "affected persons" and if the appeal was an appeal as
described in the new illegally made appeals policy they passed in 2005. The judge
was not asked to hold an evidentuary hearing. This was an extremely unusual
request. The result of this request was a lengthy delay for the evidentuary
18 citizens testified before Judge Marion Wall twice in Novemeber 2006 & in February 2007. Former Metro attorney
Margaret Holleman came to each hearing (in her role as Director of Policy and
Analysis for the Metro Public Health Department) and sat at the side of the Metro
attorney. In another stunning example of the lack of professionalism by some
people on staff at the Nashville Metro Public Health Department, Margaret
Holleman giggled and even laughed out loud during the testimony of a
number of citizens who were testifying before the judge about their
hypersensitivities to pesticides.
March 2008 the judge ruled that 9 citizens were affected persons and had the right to appeal the policy. The department's will to require citizens prove they were affected delayed the hearing on the actual policy for 1 1/2 years. So, by the time the citizens were ruled affected persons, no hearing would be held on the policy since it was old.
UPDATE: In July 2006, Health Director Dr. Stephanie Bailey announced she would
leave her position at the Metro Public Health Department in August 2006. There have been no the "inadvertent misfiling and misplacement" of
citizen appeals since she left. Prior to
Bailey's reign, the Health Board held hearings when citizens filed appeals and did not
"misplace" them. There have been many changes that improved the health
and environment of Nashville because of those procedings. The president of BURNT,
Bruce Wood claims that past directors were willing to listen, learn and consider
We ask that the new director Dr. Bill Paul and other officials come up with protocol and policies to protect the
public from pesticides in addition to improving protection from mosquito-borne illness with a strong emphasis on source reduction (which is the most effective form of mosquito control).
We also ask Dr. Paul to require that his staff be competent, professional and responsible.
6.) June 2, 2008, 13 citizens file an appeal against the Board of Health for arbitrarily and capriciously approving the 2008 mosquito control policy which allows drivers to leave the spray on in the presence of pedestrians and removes the ability of citizens to opt out their property from spraying.
This policy is unreasonable, risks our health, and does not
comply with the law. Metro legal fought to have this appeal dismissed and Judge McCoy agreed. We are appealing the decision.
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