FILED 7/13/2018 6:56 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

JW

IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA

SCOTT A. TOWLER ) CIVIL ACTION FILE NO.:

)

Plaintiff, ) 18CV71 19
)

v. )

) JURY TRIAL DEMANDED

DEKALB COUNTY, GEORGIA, )

)
Defendant. )

m
)

Scott A. Towler (“ML Towler” or “P1aintiff’) files this Complaint (“the Complaint”)

against DeKalb County, Georgia (“DC” or “Defendant”), showing the court as follows:

INTRODUCTION

1.

In the last decade, DeKalb County’s Department of Watershed Management (“DWM”)

has become synonymous With corruption and mismanagement because of the failure -
0r, in

some cases - the flat refusal of DWM officials t0 comply With the rules and regulations Which
govern its operations, including purchasing, contracting, public health, and clean water. As a

result, DC’s ability t0 serve its citizens has been undermined by lawsuits brought by State and

Federal regulators, costly settlements, corruption investigations, and even criminal convictions of

former County employees. Recognizing that DWM needed new management, DC heavily
recruited and ultimately hired Scott Towler t0 address DWM’s deficiencies, and turn around the

Department to serve DeKalb citizens. Mr. Towler jumped into his new position, excited to help

DWM remedy its operations. Unfortunately, Mr. Towler soon learned that DC officials had no

intention of complying with the regulations, and his hiring was nothing more than an attempt by

DC t0 pretend it cared about compliance. Mr. Towler made it clear that he refused t0 participate

in attempts by DC officials t0 circumvent the law. Over the course of two years, Mr. Towler

regularly obj ected t0 practices Within DWM that violated anti-pollution and anti-corruption laws,
rules, and regulations as he feared for DeKalb citizens and hoped his objections would eradicate

the escalating issues Within DWM. Unfortunately, however, Mr. Towler’s good-faith objections

were met With questions about his loyalty and actions t0 remove his responsibilities within

DWM. Eventually, Mr. Towler was forced out of his job by DC officials as his repeated

disclosures and objections isolated him and disallowed him t0 perform his job duties.

PARTIES

2.

Mr. Towler is a resident of the state of Georgia, and was previously employed by DC. At

all times relevant t0 this action, Mr. Towler was a “public employee” for purposes of O.C.G.A.

§ 45-1-4. Mr. Towler subjects himself t0 the jurisdiction of this court.

3.

Defendant DeKalb County, Georgia is a body corporate With the power t0 sue and be

sued, pursuant t0 O.C.G.A. §§ 36-1-3, 36-1-4, and is a “public employer” Within the scope of

O.C.G.A. § 45-1-4. Defendant has offices at 1300 Commerce Drive, 6th Floor, Decatur, Georgia
30030, and may be served by personal service at that location upon its Chief Executive Officer,

Michael L. Thurmond.

JURISDICTION AND VENUE

4.

This action is brought under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4, et seq.

(“The Whistleblower Act”), and subject matter jurisdiction is proper in this Court.

5.

Jurisdiction and Venue is proper in the Superior Court of DeKalb County, pursuant t0 Ga.

Const VI, § II, Para. VI and O.C.G.A. § 15-6-8, because the actions alleged in this lawsuit

occurred in DeKalb County.

FACTS

Historv ofPollution & Corruption in DeKalb Coungg

6.

For nearly a decade, DC has been the subject of enforcement actions by state and federal

agencies for violating the rules and regulations Which govern the disposal of sewage and the

public’s access t0 clean water.

7.

Specifically, the Georgia Environmental Protection Department (“EPD”) and the Federal

Environmental Protection Agency (“EPA”) investigated DWM for intentionally dumping raw

sewage into rivers, streams, and peoples’ back yards.

 8.

DC’s sanitary sewage system is decades 01d and broken-down. During heavy rains,

rainwater seeps into the sewage system causing raw sewage t0 flood out. These sewage

overflows occur throughout the system - frequently in the same areas Where 01d and undersized

pipes are under stress from new construction and development.

9.

After hundreds of sewage overflows were reported in DC between 2005 and 2010, EPA

and EPD filed suit against DC t0 enforce state and federal clean water laws.

10.

If DC continued t0 ignore its ongoing sewage overflows and spills, DeKalb citizens

would have faced millions of dollars in fines and serious public health consequences from

sewage running into yards, creeks, and rivers in DC.

11.

In December 2010, DC had no choice but to agree t0 comply With state and federal

regulators. As a result, DC entered into a Consent Decree With EPA and EPD and was forced t0

pay over $1 million dollars for fines, penalties, and environmental projects as a direct result of

DC’s past pollution.

12.

DC was also forced t0 concede to make $1.35 billion for both immediate and ongoing

assessment, rehabilitation, and improvement t0 its aging water and sewer systems.

13.

Unfortunately, DC was either unable - or unwilling - t0 rise t0 the occasion and remediate

the issues identified by state and federal regulators. Within two years of the Consent Decree,
DC’s massive expenditures for sewer improvements were investigated for corruption and fraud.

In 2013, a special grand jury was appointed t0 investigate the Wide-ranging allegations of

corruption related t0 contracts for DC’s sewer system.

14.

Meanwhile, DC failed t0 make progress 0n much needed improvement and assessment

projects required for compliance With the Consent Decree as DC churned through a series of

Directors at DWM.

15.

If DC continued in the same manner, it would be enjoined from allowing development

and new construction in the County due t0 its failure t0 address its pollution problems.

DeKalb Hires Mr. Towler t0 Clean Up DWM

16.

After a nationwide search, in October 2015, Mr. Towler was hired t0 serve as the new

Director 0f DWM.

17.

Mr. Towler was asked t0 relocate t0 Georgia from Pennsylvania Where he had a family

and a network of friends and professional colleagues.

18.

During his first year at DWM, Mr. Towler worked through numerous issues inherited

from the series of DWM Directors Who preceded him, including public backlash t0 Widespread
water and sewer billing disputes, the lack of organized procedures Within DWM, untrained,

underqualified, and non-performing personnel, and a glut of unfilled positions.

 19.

Mr. Towler soon realized that the issues Within DWM were insurmountable if he did not

have the support of the officials Within DC; the fraud and corruption Which had plagued DC for

so long had affected almost every aspect of DWM’s operations.

20.

For example, Mr. Towler realized that DC had systematically underreported sanitary

sewer overflows t0 EPA and EPD. In 2016, Mr. Towler directed an investigation into DWM’s

historical underreporting t0 state and federal agencies.

21.

Mr. Towler was shocked at What he learned and knew that he was duty-bound t0 disclose

the full extent of DC’s pollution problem t0 EPA and EPD. Mr. Towler then directed an internal

audit of all other regulatory programs Within DWM and was shocked t0 realize that there were
Widespread non-compliance issues Which were worse than he first believed.

22.

Despite these challenges, Mr. Towler and DWM made progress 0n critical measures to

avoid increasing pollution in DC and t0 comply With the Consent Decree, including working

With developers t0 implement procedures to manage sewer capacity for development in areas

With a history of sanitary sewer overflows and known sewer capacity issues.

23.

In his first year at DC, Mr. Towler was appalled When interim CEO Lee May (“May”) -

the same person Who hired Mr. Towler t0 clean up DWM - pressured him t0 spend DWM
ratepayer funds t0 purchase tickets t0 a jazz concert. Mr. Towler refused t0 purchase the tickets

as a waste of ratepayer funds.

 24.

Then, May demanded that Mr. Towler agree t0 a multi-million dollar increase t0 a DWM
contract Without allowing open bidding 0n the work as required under DC’s contracting

procedures in order t0 avoid the appearance of corruption. Mr. Towler openly objected t0 the

contract change, Which May forced through over Mr. Towler’s objection.

25.

By the end of 2016, as a result of his disclosures to regulators and objections and refusal

t0 participate in May’s actions, Mr. Towler found himself at odds With DC officials Who wanted

t0 ignore the laws and rules governing DWM operations.

Mr. Towler Fights t0 Maintain Compliance at DWM under New Leadership

26.

In January 2017, DC’s new CEO, Michael Thurmond (“Thurmond”), came into office.

27.

Almost immediately, Thurmond met alone With Mr. Towler and questioned his loyalty

based 0n Mr. Towler’s objections t0 May. Mr. Towler was shocked by Thurmond’s comments

about loyalty, because his position as Director of DWM must be free from political influence.
28.

In April 2017, Thurmond suddenly hired Ted Rhinehart (“Rhinehart”) as DC’s new

Deputy Chief Operations Officer of Infrastructure - placing Rhinehart over several departments

including DWM.
 29.

Rhinehart had previously worked at DC until April 2013, when he spuriously resigned in

the wake of the grand jury investigation into corruption in DC and DWM.

30.

Mr. Towler tried t0 work With Rhinehart t0 address the ongoing issues of sewer capacity

and development in DC. Rhinehart, however, was holding meetings With contractors, developers,

and representatives of large business interests regarding DWM policies and compliance measures
Without any input or communication from Mr. Towler.

31.

Beginning in May 2017, Mr. Towler objected t0 Rhinehart after learning that DC had

allowed new developments t0 connect t0 the sewer system in areas With a history of sewage

overflows Without measures in place t0 ensure that DC’s system could handle the additional

sewage.

32.

Mr. Towler also learned that Rhinehart was signing sewer capacity approval letters that

benefited select developers, Without review and certification by a qualified individual in DWM
t0 ensure that the increased flow of sewage into the system would not lead t0 more sewage spills.

33.

Mr. Towler objected t0 Rhinehart’s practice of allowing new sewer connections Without

review by a qualified individual in DWM because it was a violation of both the Consent Decree

and State and Federal laws governing DC’s known pollution problems.
 34.

Immediately after Mr. Towler objected t0 Rhinehart’s flagrant disregard for DC’s sewer

capacity issues, Rhinehart cancelled Mr. Towler’s standing weekly meeting With DC’s Law

Department and instructed Mr. Towler t0 direct all communication regarding legal issues through

him. Mr. Towler had instituted the weekly meetings With the Law Department as an instrumental

part of his efforts t0 address DWM’s Consent Decree compliance, overall regulatory

non-compliance Within DWM, and proposed changes t0 DC Water and Sewer code and policies.

35.

Mr. Towler repeatedly objected t0 Rhinehart negotiating DWM contracts that violated

DC policies 0n the basis that the contracts improperly benefited private developers and involved

expenditures not approved by the DC Board of Commissioners.

36.

Mr. Towler also objected t0 Rhinehart’s actions in using contractors Who had previously

been disqualified by DWM for failing to perform.

37.

Both Rhinehart and Thurmond simply ignored Mr. Towler’s obj ections. However, in July

2017, the media reported 0n Mr. Towler’s communications With Rhinehart Which came to light

after local reporters filed open records request t0 DC, and Thurmond gave a televised interview.

Thurmond downplayed Mr. Towler’s objections about DC’s sewer capacity issues and refused t0

address any of Mr. Towler’s obj ections With Mr. Towler directly.

38.

DWM employees also reported t0 Mr. Towler their concerns regarding Rhinehart’s

conduct that they believed was not in compliance With DC policies or State and Federal law. Mr.
Towler elevated these issues to his superiors at DC Without identifying the individual staff

members t0 protect his employees from the same type of intimidation and retaliation he had

faced.

39.

Over the summer of 2017, Mr. Towler continued t0 try t0 do his job as Director and

sought t0 resolve the issues Within DWM directly With Rhinehart. Mr. Towler also discussed

ongoing improvements and organizational changes for DWM With Rhinehart, but Rhinehart

refused t0 engage With Mr. Towler and repeatedly directed him t0 hold off 0n all plans until they

could meet and review With Thurmond. This impacted Mr. Towler’s ability t0 do the job for

Which he was hired, because it effectively halted ongoing projects, hiring plans, and

organizational changes.

40.

In August 2017, Thurmond and Rhinehart issued “interim” sewer capacity procedures

that allowed DC officials to continue the same practices that were the subject of Mr. Towler’s

previous objections. Concerned that the policies did not comply With the requirements of the

Consent Decree and would lead t0 increased sewage overflows and fines or worse from the EPA,

Mr. Towler was left With no choice and he disclosed DeKalb’s interim procedures t0 EPA.

Thurmond and Rhinehart Retaliate Against Mr. Towler for his Protected Disclosures

41 .

Despite Rhinehart’s assurances that Thurmond would review issues related t0 DWM
management with Mr. Towler, no such meeting or communication ever occurred. Instead,

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Rhinehart made unilateral changes t0 DWM’s organizational structure Without any discussion or

even notice t0 Mr. Towler.

42.

At the end of July 2017, Thurmond replaced Mr. Towler with an official in from the

CEO’s office as the new county representative for signing all reports and documents required

under the EPA Consent Decree and Sewer Capacity Approval for new and existing development

projects.

43.

Mr. Towler previously signed all of the reports and documents required under the

Consent Decree and Thurmond’s decision t0 remove him was obviously t0 insulate Mr. Towler

from knowledge of continued corruption and failure t0 comply With the decree,

44.

As further retaliation against Mr. Towler, Rhinehart issued directives to DWM staff and
contractors that were inconsistent With existing DWM procedure or that contradicted specific

direction from Mr. Towler. As a result, DWM staff and contractors began t0 question Mr.

Towler’s authority Within DWM and eventually began t0 ignore him.

45.

Mr. Towler repeatedly requested a description of his responsibilities under the new DWM
organizational structure implemented by Thurmond. Rhinehart initially assured Mr. Towler he

would provide this information but never did. Eventually Rhinehart ignored later requests from

Mr. Towler for clarification of his responsibilities and refused t0 respond 0n any level.

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 46.

On August 30, 2017, Mr. Towler sent a letter to the County Attorney asking for help with

the compliance issues at DWM. Mr. Towler requested assistance With Rhinehart’s ongoing

retaliation against him after he (Mr. Towler) disclosed the myriad violations of law Within DWM.

47.

In his letter to the County Attorney, Mr. Towler reported that he feared retaliation against

DWM staff Who reported issues t0 him.

48.

DC refused t0 investigate Mr. Towler’s concerns Which he reported in his letter t0 the

County Attorney. In addition, DC improperly characterized Mr. Towler’s disclosures as

employee grievances in an obvious effort t0 minimize his objections.

49.

Through the fall of 2017, Mr. Towler continued t0 object t0 Thurmond and Rhinehart

unilaterally implementing policies for DWM that were not in compliance With the Consent

Decree and DC’s obligations under State and Federal anti-pollution laws. When a meeting was

finally scheduled for Mr. Towler and Thurmond t0 discuss Mr. Towler’s objections and

disclosures, Thurmond cancelled the meeting Without explanation.

50.

When Mr. Towler was invited t0 an internal meeting t0 discuss DWM policies and

compliance With the Consent Decree, the County Attorney openly chastised Mr. Towler in front

of his colleagues Within DC for making disclosures and objections in writing by email - in an

obvious effort to discourage further reporting of non-compliance at DWM and t0 keep objections
out of the public forum.

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 51.

In November 2017, Mr. Towler was excluded from critical meetings Which were

necessary t0 prepare for and respond t0 EPA and EPD regarding DC’s compliance with the

Consent Decree. Mr. Towler had no choice but t0 conclude that DC officials did not want him t0

attend as he interfered With their plans t0 circumvent compliance.

52.

On November 29, Mr. Towler was directed t0 attend a meeting With EPA, but the County

Attorney incredibly directed him not t0 speak and not to sit at the conference table With other

senior DC officials.

53.

Mr. Towler was humiliated by being told not t0 speak When he was the purported director

of DWM in a meeting with regulatory officials With Whom he had regularly communicated and
represented DC in the past.

54.

Following the meeting with EPA in November, Mr. Towler was intentionally excluded

from discussions about DC’s proposed sewer capacity policies for compliance With the Consent

Decree, even though Mr. Towler as Director of DWM was responsible for implementing the

policies.

55.

Later, EPA and EPD responded t0 DC’s sewer capacity policies and confirmed many of

Mr. Towler’s objections. For example, in review of the proposed DC sewer capacity procedure,

Mr. Towler objected t0 DC excluded evidence of prior sewage overflows 0n the basis that the it

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only occurred during extreme rain events. The EPA and EPD that DC could not omit wet weather

sewage overflows as they are clear evidence of a lack of capacity.

56.

Despite the state and federal agency’s response in line With Mr. Towler’s objections, not

one official Within DC leadership consulted With Mr. Towler as Director of DWM 0n the policies
or measures t0 comply With the issues from EPA and EPD.

57.

Although Mr. Towler faced retaliation - marginalized Within DWM, excluded from

meetings, and reprimanded for his objections - he remained at DC and tried t0 do his job t0 the

best of his ability.

58.

Unfortunately, the actions t0 either exclude or overrule Mr. Towler escalated. On one

occasion, Rhinehart actually rehired a former DWM employee Who Mr. Towler had

recommended for termination a year earlier due t0 serious performance deficiencies - including

her prior mismanagement of DWM’s sewer capacity program and failure t0 produce a guidance

manual and procedure for developers requiring water and sewer in DC. Mr. Towler was excluded

from the hiring process but objected as soon as he learned of the planned hire. Rhinehart ignored

Mr. Towler’s objections and hired the former employee for a critical position within DWM.

59.

Rhinehart’s decision t0 rehire an employee Who Mr. Towler and other senior DWM
officials had repeatedly written up and tried to work With for improvement constituted a

significant waste of time and resources at DWM. Further, Rhinehart’s decision exposed DeKalb

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citizens t0 a repeat of the mismanagement that Mr. Towler diligently worked to eliminate within

DWM.

60.

By March 2018, it was obvious t0 everyone that Mr. Towler had been stripped of all

authority because of his objections and refusal t0 participate in violations of law at DWM. As a

result, Mr. Towler experienced significant stress and anxiety that affected his health.

61.

Mr. Towler realized that he could not remain in the position Where he would be held

accountable by EPA and EPD for deficiencies and risked losing his license as a professional

engineer.

62.

On March 5, 201 8, Mr. Towler was forced out of his position as Director of DWM.

63.

In a blatant act of retaliation, DC released Mr. Towler’s resignation letter t0 the media

and then unlawfully accused him of making slanderous allegations against DC officials.

64.

DC’s constructive termination of Mr. Towler caused him great injury, including lost

wages, the loss of accumulated fringe benefits of employment, loss of retirement income,

diminished future earning capacity, harm t0 his reputation, emotional distress, humiliation, and

embarrassment.

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 w
RETALIATION UNDER THE
GEORGIA WHISTLEBLOWER ACT, O.C.G.A. § 45-1-4, et seq.

65.

Mr. Towler incorporates by reference all of the foregoing paragraphs of this Complaint,

as if fully set forth herein.

66.

Pursuant t0 O.C.G.A. § 45-1-4(d)(3), it is unlawful for a public employer t0 retaliate

against a public employee for disclosing, objecting t0, or refusing t0 participate in, any activity,

policy, or practice of the public employer that the public employee has reasonable cause t0

believe is in violation of or noncompliance With a law, rule, or regulation.

67.

At all times relevant t0 this action, Mr. Towler was a public employee as that term is

defined by O.C.G.A. § 45-1-4(a)(3).

68.

At all times relevant t0 this action, Defendant DeKalb County, Georgia was Mr. Towler’s

employer and was a “public employer” as defined by O.C.G.A. § 45-1-4(a)(4).

69.

Mr. Towler engaged in protected activity under the Whistleblower Act by disclosing,

objecting t0, and refusing t0 participate in conduct that he reasonably believed was in violation

or noncompliance With a law, rule or regulation.

70.

Defendant retaliated against Mr. Towler for engaging in protected activity in violation of

the Whistleblower Act by: (a) undermining Mr. Towler’s authority With his subordinates in

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DWM; (b) excluding him from meetings and communications directly relevant to his position as

Director of DWM and necessary for his job performance; (c) by removing Mr. Towler’s authority
t0 make basic decisions regarding the operation of DWM, including (by way of example and

Without limitation) work assignments t0 employees, hiring and firing employees, development of

policies, and management of DWM contracts and budget; (d) by subjecting him t0 exposure for

individual penalties, including loss of his license as a professional engineer or criminal penalties;

(e) damage t0 his professional reputation and career; and (f) maligning him in the press. A11 of

these actions interfered With Mr. Towler’s ability t0 do his job at DC and caused him t0

experience stress and anxiety as a result of the ongoing retaliatory work environment.

71.

These actions were intended t0 make Mr. Towler’s working conditions so intolerable to

force him t0 leave DC.

72.

DC violated the Whistleblower Act by adopting and enforcing policies and practices t0

prevent public employees from disclosing violations of laws, rules, and regulations t0 either a

supervisor or government agency. DC actively sought t0 violate the Whistleblower Act by

discouraging and threatening employees Who reported violations of law.

73.

DC’s actions in forcing Mr. Towler out of his job amount t0 a constructive termination of

Mr. Towler’s employment With DC - With the same force and effect as if he had been fired

outright.

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 74.

DC’s termination of Mr. Towler in retaliation for his protected activity is an adverse

action in violation of the Whistleblower Act.

75.

DC has no legitimate non-retaliatory reasons for the adverse actions it took against Mr.

Towler.

76.

As a result of the unlawful, adverse employment actions taken by DC, Mr. Towler has

sustained great injury, including diminished future earning capacity, emotional distress,

humiliation, and embarrassment.

77.

Mr. Towler is entitled t0 reinstatement With back pay and such benefits as Mr. Towler

would have enjoyed had he never been constructively discharged. If reinstatement is not

appropriate or practicable, Mr. Towler is entitled t0 front pay in lieu of reinstatement.

78.

Mr. Towler is entitled to recover damages for lost wages, the loss of accumulated fringe

benefits of employment, loss of retirement income, diminished future earning capacity,

tarnishment of his reputation, emotional distress, humiliation, and embarrassment, pursuant t0

O.C.G.A. § 45-1-4(e)(2)(D) and (E).

79.

Mr. Towler is entitled t0 recovery of his attorneys’ fees and all other costs of litigation,

pursuant to O.C.G.A. § 45-1-4(f).

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 80.

DC is liable for all economic and noneconomic damages t0 Mr. Towler as a result of its

unlawful actions, pursuant t0 O.C.G.A. § 45-1-4(e)(2)(D) and (E).

JURY TRIAL DEMAND

PLAINTIFF HEREBYDEMANDS A TRIAL BY JURY:

PRAYER FOR RELIEF

WHEREFORE, Mr. Towler prays for the following relief:

1. Judgment against Defendant under Count I;

2. Back pay and such benefits as Mr. Towler would have enjoyed had he never been

constructively terminated;

Reinstatement With back pay and such benefits as Mr. Towler would have enjoyed

had he never been constructively discharged;

If reinstatement is determined t0 be inappropriate under the circumstances,

compensation for Mr. Towler With three years of front pay, including any fringe

benefits and any loss of retirement income;

Compensatory damages in an amount t0 be proven at trial t0 compensate Mr.

Towler for his diminished earning capacity, mental anguish, humiliation, pain and

suffering, and other damages that resulted from the Defendant’s unlawful conduct;

Mr. Towler’s attorneys’ fees and costs of this action, pursuant to O.C.G.A.

§ 45-1-4(f);

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 7. That the Court enjoin Defendant from any further violations of O.C.G.A. §

45-1-4; and

8. Such further and additional relief as the Court may deem is appropriate.

Respectfully submitted this 13th day of July, 2018.

THRASHER WORTH, LLC

/S/Kimberly A. Worth

Kimberly A. Worth
Georgia Bar No.2 500790
kworth@thrasherworth.com

Katy E. Aultman
Georgia Bar No.2 359702
kaultman@thrasherworth.com

Five Concourse Parkway Attorneysfor Plamnfi

Suite 3200
Atlanta, Georgia 30328
Telephone/Fax: (404) 760-6016

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