It’s being argued that we in the media are “just silly” to be demanding that federal and state investigators open their probe of the disaster at Massey Energy’s Upper Big Branch to the press and the public.
Let’s put aside for a moment the crucial question of why MSHA chief Joe Main doesn’t respond to requests from the widows of Upper Big Branch miners that they be allowed into the investigation to find out the truth about why their husbands died.
The argument being put forth is that letting the press into the investigation interviews or making the contents of those interviews available in real time will hamper the investigation and help Massey Energy — by giving Massey lawyers real-time information about the direction investigators are headed.
OK … there’s just one little problem with this theory: One way or another, Massey is going to get into these interviews. That’s the way mine death investigations have pretty much always worked.
State officials generally let the company lawyers sit in. And if they don’t, the company lawyers slip in under the guise of being the “personal representatives” of individual workers or foremen. If the company wants in, it gets in. So regardless of whether the press, the public and the families find out what’s going on, Massey will.
Let me give a couple of examples …
First, there’s the investigation by MSHA and the state Office of Miners’ Health, Safety and Training a couple years ago of the deaths of Massey miners Don Bragg and Ellery Hatfield in the January 2006 fire at the Aracoma Alma No. 1 Mine.
Massey lawyers got into the interviews. They showed up with miners and foremen who are being questioned by government investigators, said they were representing those men, and were allowed to listen and take notes.
Interestingly, MSHA’s lead investigator in that case, Kenny Murray, almost always asked the miners when they had met these lawyers … and it turned out it was almost always right before the interview. Some of the miners even revealed that Massey had said they would send a company lawyer to the interview to help out.
One instance I especially remember from reading the Aracoma interviews (which, by the way, have never been officially made public by the government), Massey lawyer Dave Hardy (yes, the Kanawha County Commissioner) threatened to end an interview with a miner when investigators began to narrow their questions to figure out exactly which ventilation walls were missing prior to the fire:
It’s a voluntary interview … The voluntary interview is over until we go out in the hall and talk a minute … Thank you. How about that?
Another case I recall from recent years involved Massey’s White Buck Coal Co., which was being investigated and eventually pleaded guilty to a criminal charge that it did not perform a required pre-shift safety check at a mine in Nicholas County.
A foreman at the mine was entering into a plea deal with prosecutors, and was expected to testify against White Buck if the case against the company went to trial. But another Massey lawyer, Mark Heath, had represented both the foreman and Massey during MSHA’s civil investigation. Once the case went criminal, prosecutors questioned whether it was a conflict of interest for Heath’s firm, Spilman Thomas & Battle, to represent White Buck. After all, the foreman was going to testify against Massey’s White Buck subsidiary … should the same law firm be then defending White Buck in the criminal case?
At the time, I quoted longtime mine safety lawyer Tony Oppegard commenting on the common practice of company lawyers also representing miners during MSHA investigations:
It is a widespread problem, and I think it’s a shady legal practice on the part of the company lawyers to do that. They know the individual miners can’t afford an attorney, so the individual miners think they’re getting free legal help. But the trade-off is they’re not going to want you to say anything that is contrary to the company’s best interests.
In the end, U.S. District Judge John T. Copenhaver ruled that the Spilman firm had a clear conflict of interest. Still, the judge allowed Spilman to represent White Buck — as long as lawyers from the firm did not try to cross-examine the foreman they had formerly represented.
An interesting thing is that Copenhaver noted that the foreman and Massey had “diametrically opposed” version of events at the Grassy Creek No. 1 Mine
The foreman insisted that his supervisors “instructed him to conduct his pre-shift duties in an unlawful manner,” the judge wrote. At the same time, White Buck “has engaged in determined efforts to pin all fault upon Wine for the violation.”
In any event, the suggestion that the media and the public need to be kept out of this investigation to avoid tipping off Massey about what investigators are learning and what direction the probe is headed simply doesn’t hold water, given that Massey’s going to be in the room one way or the other.
Of course, it appears that the United Mine Workers will also get in the room, and that provides some check on the company lawyers … but what if questions start narrowing to mistakes made by MSHA under the watch of the union’s former safety director, Joe Main? Allowing the press and the public — let alone the widows — into the room would ensure a proper investigation. To his credit, UMWA President Cecil Roberts has joined in the call for a public investigation.
We all await an answer from MSHA …
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Ken,
I’ll represent the widows for free in any investigation they want to be involved in.
You’re sort of setting up a strawman argument here. Saying it is being argued that requests for open proceedings is being called silly and then sourcing that solely to a foul-mouthed, half-wit blogger read by at most a few dozen people– most of whom sound loonier and more foolish than he does– seems a wasted effort. Why bother defending yourself against that accusation?
Everyone with any sense understands that Massey will know what is being said in closed proceedings and the sunshine is needed precisely to guard against undue influence by the company contrary to the interests of the miners and the public.
Refuting every crackpot with a blog who might say something stupid in response to you would be a full-time job — and a pointless one. Focus on what matters and ignore the crazies.
Ken,
You and Josh both need to do a better job of picking your fights here. Derek has a good point, in that getting into an internet spitting contest is just going to make you look thin-skinned and petty. And leave you open to the charge that you have a grudge against Hippie Killer because he was such an effective critic of your old friend Mike Garrison.
Derek and drh,
First, I hardly think I’ve engaged in a spitting contest. I haven’t called anybody names or used any defamatory language … I’ve simply provided some facts that might be of interest to anyone following the issue.
Second, I’m not really a frequent reader of “Hippie Killer’s” blog, and only became aware of the posts regarding the MSHA investigation when a reader forwarded them to me. Whether folks in government who are actually making decisions about mine safety read his blog or not, I don’t know.
Finally, I hardly think that anything I’ve written about the MSHA investigation could be considered by any reasonable person to have a darned thing to do with Mike Garrison … in the interests of full disclosure, I did attend WVU with Mike and considered him a friend then and now. While I was not involved in the Gazette’s coverage of his presidency at WVU, I think if you were to ask Mike about my coverage of some of his work for the Wise administration — especially some involvement with coal-related issues — you would find that he didn’t consider the stories especially favorable to him.
Folks are entitled to whatever opinions they want of me, and I completely, totally support anyone’s right to post whatever they’d like on their blogs. I just wanted to inject some facts and a little bit about past MSHA investigations into the discussion of what should happen with the probe of the Upper Big Branch Mine Disaster.
Finally, as I think about this particular blog post of mine, it is frankly far less important to debunk what Hippie Killer has said about this than to make sure that the general public who read Coal Tattoo, but may not know much about MSHA investigations, understand that the coal company is going to get in the room — while the press, the public and (more importantly) the families of the victims may not.
Ken.
One other thing:
Let me again refer everyone to the blog piece written by former MSHA PR person Kathy Snyder about the history of transparency (or lack thereof) of mine disasters. It’s here:
http://minesafetywatch.wordpress.com/2010/04/26/united-mine-workers-enter-mine-investigation-will-public-also-have-access/
While I didn’t always agree with Kathy when she was an MSHA public affairs officer — my memory of how open MSHA was when she was there is a little different than hers sometimes — she really explains this situation very clearly and provides important context.
ken.
My point was not to imply you are engaging in a spitting contest or to suggest you have a grudge against the Fifth Column — for any reason. I don’t know you and I never heard of “Hippie Killer” before following your link. My purpose was to ask that you write about the issues that matter not what was written on some blog.
It seemed to me you were doing things that are a waste of time which could be more productively used. You seemed to imply that you were being unfairly accused of being “silly.” I’ll agree, but so what?
The secondary implication I surmised was that you want people to conclude you are to be commended for perservering in the face of such criticism when in fact the criticism comes from a vulgar ranter who appears to have many opinions but next to no credibility (maybe you *should* have read a few other posts there before deciding a response was necessary).
If some nutjob spits at you, just because you don’t spit back doesn’t mean you took the best approach if you instead expend a lot of effort showing why the guy was wrong to spit at you. Most people would likely have agreed the spitter was wrong without you doing anything, so there seems no point in responding except to call attention to the truly irrelevant fact some nobody blogger with an anger problem spit at you.
Save your ammo for when Massey and “Friends of Coal” make unfair criticisms– those might matter.
The “Hippie Killer” blog played an important role in covering the Garrison affair, as did the Pittsburgh Post Gazette, the Charleston Gazette, and the Daily Athanaeum, to name a few. Plenty of credit or blame to go around, depending on how you see it.
The “default mode” on these mine disaster investigations has been to do it away from ongoing and continuous public scrutiny, and — just look how well that has worked out in the past!
I think Ken and the UMWA and others are doing something very valuable in pushing for total transparency to the maximum feasible limits of the law. I hope many other voices join in. Let’s show the world that West Virginians and Americans can operate in the sunshine, and let the chips fall where they may!
I think we owe not one whit less to those UBB miners and their families.
I appreciate your suggestion to focus Derek … I have to admit that is one of the things that is hard in this sort of a situation — there are so many angles and deciding which way to proceed is always difficult, in my opinion and experience.
In this case, as I said, I think that getting out to people the fact that the normal practice is for the investigations to let the company lawyers in and the public out is pretty important — so in writing about and responding to Hippie Killer, hopefully, I’ve educated a few people about the process. Maybe not.
Ken.
No offense was intended. It is possible some people who read this blog are not aware that company reps are not denied access to “closed” proceedings during an investigation. Obviously, your blogging critic wasn’t.
I will revise my suggestion simply to suggest you can provide the needed education just by providing the information and without resorting to saying you are providing it in response to criticism. That kind of personalization strikes me as less than professional.
I realize this is a blog not the newspaper itself, but I’m old and one of the things I find most distasteful about the world of blogging is the popular but pointless exercise of quoting another blog for no purpose other than to refute the substance of the quote. Too much blogging comes across as little more than a vanity platform. The blog you linked appears to be nothing but a platform for some blowhard to exalt himself and belittle others. Engaging that sort of person only strokes the ego and offers encouragement for more of the same. Some things are best ignored.
You’ve done a lot of good work in the past and i’m confident you will do so covering this story and the broader issue od workplace safety in the mining industry. I truly only meant to offer constructive advice
Peace
hopefully, I’ve educated a few people about the process
You have, and making one blog post responding to his criticism wasn’t petty or thin-skinned or a waste of time.
The irony here is that Derek is going to take up even more time trying to make you defend it.
Your biggest sin to the Fifth Columnists is not having a Joe Manchin fetish.
You’re doing fine, Ken, and I hope you keep it up.
I’m going to go out on a limb here and say that I don’t think Ken has a “grudge” with me. Adults sometimes disagree with one another. It’s as simple as that.
Also, Derek, nice of you not to venture beyond the standard script everyone uses whenever they want to dismiss or marginalize something a blogger says. “Half-wit” and “foul-mouthed?” What’s next, are you going to say I live in my mother’s basement?
You know, I’ve had a comment rejected because I called a certain former WV Supreme Court justice an extremist. I was told that was name calling. If “extremist” is name calling, what’s “foul-mouthed, half-wit blogger”? (And I’m not arguing that Derek’s comment should have been rejected, just arguing for consistency.)
PDXile makes a good point about the consistency of the comment moderation … my apologies … I must say that the level of work I’ve had to do over the last month not blog-related has been sky high, and I haven’t been as good as I’d like at keeping consistent with the comments … I’ll try to do better with that.
But now that Hippie Killer has had his say here as well, I think Coal Tattoo will move on before things go any farther … Thanks for the comments and criticism, and stay tuned for more on the mine disaster.
Ken.