DA says Andersen knew of asbestos risk in Merced school
By Victor A. Patton
MERCED -- 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 after an investigation by the Stanislaus County district attorney's office. Prosecutors say 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 Merced Sun-Star, insists he acted quickly to look into the asbestos exposure. He told a 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.
The Merced County Office of Education 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 under the guise of involving at-risk students in work experience and job training programs.
The three were first arrested in September 2008 on charges of grand theft, falsifying corporate reports, perjury and forgery. 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.
Merced County District Attorney Larry Morse II 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.
Violation of 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 county 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.
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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.
The county Office of Education 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 states the presence of asbestos in the structure.
Stanislaus County prosecutors say Andersen knew of the students' asbestos exposure in October 2008 and only notified his staff and their attorney.
Andersen didn't reveal 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 DA's office, met with Andersen to discuss how the Office of Education 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 that he was first notified about the asbestos exposure in fall 2008.
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.
Harris and Fladager believe Andersen clearly violated state law by not reporting the asbestos exposure as soon as he learned about it. But they say 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.
The Sun-Star contacted Andersen seeking a response to the Stanislaus County 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. "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, Andersen declined, and referred to his letter.
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.
In Andersen's case, even though the alleged asbestos exposure happened in 2005-06, and he found out about it in 2008, as 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 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 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."