Allegations of workplace safety violations made against the Peekskill Water & Sewer department beginning in 2021 were made again in late January of this year.

On Jan. 26, New York state Department of Labor’s Public Employee Safety and Health (PESH) agency posted a referral of a safety inspection regarding “water and sewer line and related structures construction” at 840 Main St., the address of City Hall.

According to Dave Rambo, Peekskill’s water superintendent, and assistant superintendent Cornell Hammond, who was called to the job site, the inspectors noted two issues that were immediately corrected. The work was approved by the inspectors and was completed.

Because the hole dug was less than five feet, no trench box was required on the job. A safely ladder that should have been in the hole was in a truck nearby and some material removed was too close to the hole. Both items were corrected, Hammond said.

“PESH comes out for the safety of the employees,” Rambo said. “We take the safety of the employees very seriously and would not put them in a situation where PESH can come in and shut down the job. Had that been the case, they would have said that’s it, cordoned it up and said you guys are done for the day. That didn’t happen, they continued to do the work,” Rambo said.

Inspections can be the result of complaints or referrals about a potential hazard or violation, a follow up to an earlier inspection or an agency can initiate an inspection on its own, called a programmed inspection.

The newest PESH inspection echoes similar allegations that fired city employee Brian Raphael made that the same violations were occurring on an ongoing basis at city worksites several years earlier.

According to a May 2022 lawsuit that Raphael’s attorney filed against the city, Raphael was fired from his position as assistant water & sewer superintendent in August 2021 in what he claims was retaliation for his persistent complaints about ongoing safety violations that were placing city workers in danger.

In the lawsuit, Raphael cites numerous occasions where he outlined dangerous working conditions, the lack of proper safety equipment, failure to supply proper training and other improper behavior on the part of the city. One issue was the lack of a trench box to protect the workers in case of a collapse.

He claims his actions led directly to his firing.

“Mr. Raphael can also establish a causal connection by demonstrating Mr. [David] Rambo’s retaliatory animus towards his whistleblowing activity,” the court papers state.” [Rambo was water superintendent at the time.]

“Throughout Mr. Raphael’s brief 10-month tenure as Assistant Water & Sewer Superintendent, Mr. Rambo responded with hostility every time Mr. Raphael made an effort to address the incessant confined spaces violations he observed, including but not limited to the need for additional equipment and training.”

Workers complain to state about safety conditions

A boiling point in the ongoing battle over safety conditions was reached in late August 2021 when Raphael was fired, according to his claims in court documents.

The New York state PESH division had been informed of the alleged violations by two city employees.

According to court documents, “On August 17, 2021, PESH called Mr. Raphael to discuss Peekskill’s confined space program, and PESH again stated that there should be no confined space entry by Peekskill.

“The PESH representatives, Sushil Mahalwal and Jaisingh Balkaran, told Mr. Raphael that PESH received calls saying there were employees being told to do confined space entry, even though they were not allowed per OSHA and per the PESH citations from May 19, 2021.

“Mr. Raphael told the PESH representatives that Mr. Rambo, Mr. [Christopher] Gross, and Mr. Cornell Hammonds, the foreman, were still requiring the workers to make confined space entries,” he claims in court papers.

Raphael writes that he informed Rambo later that day about his conversation with PESH and then posted the PESH violations in the conference room per PESH orders, which made “…Mr. Rambo angry.”

Then, on Aug. 24, 2021, one day before the scheduled meeting with PESH to discuss the confined space violations, Raphael claims he was called to a meeting at the water filtration plant with Rambo, then City Manager Andrew Stewart, and Human Resources representative Ms. Joanna Duncan, at 8:30 a.m.

“When Mr. Raphael arrived, he asked ‘should I pack my bags?’ and Mr. Stewart replied ‘yup,'” the court papers state. “When Mr. Raphael asked ‘what’s the reason?’ Mr. Stewart replied that he was ‘not the right fit anymore.'”

Attorneys for Peekskill defend Raphael firing

In response to Raphael’s lawsuit, attorneys for Peekskill argue that the city fired him for cause and did not retaliate illegally because of his whistleblower claims.

Christopher Feldman, an attorney with the firm of Harris Beach in White Plains, writes that Raphael’s supervisors noted areas of deficiency he needed to improve on beginning in October 2020. These included management of water and sewer crews, completing projects, justifying purchases and checking the accuracy of payrolls.

A memo to Raphael “… specifically mentioned that he “doesn’t know the details of the needed tasks of the water and sewer [department] crews. And therefore cannot provide support to the crew to complete the task in [a] most effect[ive] and correct [manner].”

A May 2021 memo restated those deficiencies and claimed among other things that “… that Brian does not provide well thought out solutions to technical or operational challenges faced by the department.”

Then, based on an evaluation at the end of his 12-month probationary period, Raphael was rated unacceptable at “knowledge of the job” and “initiative and creativity.”

“On August 24, 2021, the Plaintiff was provided with a letter from the City Manager instructing him that his probationary appointment to the position of Assistant Water & Sewer Superintendent for the City of Peekskill would be terminated, effective September 1, 2021,” the court papers from the city’s attorney state.

A series of inspections conducted by NY PESH

According to records on the New York State PESH website, city of Peekskill agencies have been inspected eight times since June of 2019, two at the city Fire Department and six at Water & Sewer facilities.

In May of 2019 there were a total of 11 violations filed against the Water & Sewer department as a result of inspections. All 11 were categorized as water and sewer line and related structures construction. All the complaints were closed and no fines issued.

Eight of those were considered serious. Those violations all occurred at 1000 Lindbergh Place, the site of the city’s filtration plant.

Of the eight total inspection cases, two remain open. One was filed on Oct. 5, 2021 against the Fire Department at the city’s Central Firehouse, citing “fire protection safety” as the reason for the inspection.

The other open claim is the Jan. 26, 2024 inspection involving the Water & Sewer Department for water and sewer line and related structures construction work at 840 Main St., where City Hall is located.

Winding through the courts

Raphael’s current state court case is another instance where former Peekskill Corporation Counsel Tim Kramer failed to respond in the allotted time, leading to a default judgment against the city.

However, as was the case in the lawsuit filed by the owners of The Riley Building, a county judge determined that the default judgment for Raphael should be overturned and the case was re-opened, allowing Peekskill to present a defense. [The third case cost the city a $1 million judgment without being able to defend itself.]

Raphael’s original attorney died unexpectedly and he then hired Peter Wessel, his current lawyer. In court papers, Wessel alleges that the city has failed to respond to numerous demands for documents.

In his Jan. 3 court filing, Wessel demands copies of all PESH and OSHA citations dating back to 2020, cease work orders, city compliance with regulations cited, and resolution of cease work orders.

He also wants records of employee safety training, inspection of equipment, purchase of a 150-foot winch, trench boxes, adequate multigas meters and repairs at the Wiccopee Upper Dam Valve Chamber Access room for Hollow Brook Dam.

Court records show a request for adjournment on Jan. 8 followed by a conference compliance order issued on Feb. 2. During a compliance conference, the attorneys advise the judge whether the case is on schedule or whether there are delays. If there are delays, the court wants to know why.

The attorney for the city did not return a phone call requesting comment. Raphael’s attorney was not available.