Friday, July 20, 2018
News Roundup

DEP lawyer says clashes over enforcement led to his firing

Lawyer Chris Byrd had just won a court victory on behalf of the Florida Department of Environmental Protection. After a four-day trial, a jury had ruled that a Marion County couple had illegally filled in wetlands by an aquatic preserve along the Rainbow River. Instead of celebrating, the DEP attorney felt worried.

"As soon as the verdict came back, I had a sinking feeling," he said. "I thought, 'When (Florida Department of Environmental Protection Deputy Secretary) Jeff Littlejohn hears about this, I'm probably going to lose my job.' "

Sure enough, Littlejohn met with the defendants and listened to their complaints about Byrd. Five months after his win, Byrd was one of four DEP lawyers ousted from their jobs.

Byrd and colleague Kelly Russell believe they were terminated because they frequently clashed with Littlejohn over how — and whether — to enforce state laws protecting the environment.

Although he's in charge of regulatory programs, "Littlejohn doesn't like enforcement," Byrd said. "He doesn't want the department to do any high-profile enforcement cases."

Russell, in an email to the Times, contended they were fired "because of direct or indirect encounters in which our legal advice — which was specifically sought and provided — was not well received by the deputy secretary, his appointees, or outside influences, including in interactions . . . with certain opposing counsel representing private property or development interests."

Another longtime DEP attorney who was let go, Teresa Mussetto, declined to comment.

The fourth of the ousted lawyers, Chris McGuire, said he got along fine with Littlejohn but had problems with Littlejohn's deputy, Mike Halpin, when Halpin oversaw the air pollution permitting section and McGuire was in charge of attorneys in that field.

"He expressed some dissatisfaction with the air attorneys," McGuire said. "They would say, 'You can't do things,' and he didn't want to hear that."

A Times request to interview Littlejohn and DEP Secretary Herschel Vinyard was declined by DEP press secretary Patrick Gillespie. He said the firings had nothing to do with officials' disagreements with the attorneys.

Instead, Gillespie said, the firings were the work of the new DEP general counsel, Matthew Z. Leopold. Vinyard hired Leopold earlier this year from the U.S. Justice Department, where he worked on the 2010 BP oil spill. His resume includes no mention of any experience trying cases in Florida.

Leopold decided to get rid of four of his 42 attorneys because of a decline in his department's workload, Gillespie said.

"These staffing decisions were made as Matt came in as a new manager and assessed his team," Gillespie said. Because the agency is doing more to assist companies in complying with the law rather than punish them, "there have been fewer enforcement cases" needing attorneys.

Gillespie said that in 2010 DEP attorneys handled 2,289 enforcement cases. By 2012, that number dropped to 799, and as of the end of May, only 145 new ones have been filed this year.

Part of the reason for that decline, Byrd said, is the number of inspectors looking for violations has been "slashed and burned" in recent years. The other reason, he said, is because Littlejohn and Halpin control which cases reach the attorneys, even though neither has a law degree.

Littlejohn spent more than 10 years working as a consulting engineer getting state and federal permits for his clients. Vinyard hired him in March 2011 to oversee the DEP's regulatory programs, and he picked Halpin as his assistant deputy secretary.

Before any cases get to attorneys, Byrd said, they now must go through Halpin, and many are rejected. Before, when people failed to get permits for filling in wetlands or other activities, the agency went after them, he said. Now the approach is to grant them an after-the-fact permit and let it slide.

"It's like Alice in Wonderland up there now," Byrd said.

Even when cases did make it to the attorneys, "we were routinely overruled by Jeff Littlejohn," Byrd said. "Attorneys would be called to his office to brief him on cases that were not under (his division), and we were constantly having him argue with us over legal principles."

The four fired attorneys had all received stellar job reviews in recent years. One of them, Mussetto, had won a major victory in the U.S. Supreme Court in 2009.

But as Byrd learned, victory in court is no guarantee of future employment.

After the Marion County jury ruled for the DEP in its wetland-filling case against John and Mona Rondolino of Dunnellon, Byrd was ready to push for the maximum penalty — until one of Rondolino's consultants invited Littlejohn to visit.

"He was on my property for 3 ½ hours," John Rondolino said. No lawyers were present, he said.

Rondolino said he told Littlejohn that the DEP attorney was a crook and a liar. He said Littlejohn seemed upset that Byrd had spent four years prosecuting a case involving a small residential lot but made no promises about what he would do.

On April 25, Leopold asked Littlejohn if it would be all right to "re-engage" with Rondolino's attorney on working out a settlement. Byrd was not included. So far no settlement has been reached.

Documents the DEP released in response to a records request included a May 13 email that Littlejohn sent to Leopold saying he needed to discuss a Pensacola court case — the one Russell and Byrd were working on when they were fired.

Leopold sent back an email to Littlejohn and Halpin that said thanks, adding, "I need input from you guys on the best role" for an attorney he had just hired, Fred Aschauer Jr. Added to the payroll just nine days before Leopold fired the four, Aschauer had spent the previous decade challenging DEP permit decisions.

"I suggest having him head up our permitting group, in charge of defending our permit decisions," Littlejohn replied. So that's the job Leopold gave him.

Researcher Caryn Baird contributed to this report. Craig Pittman can be reached at [email protected]

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