The Tennessee Department of Transportation (TDOT) and the Federal Railroad Agency (FRA) have apparently retaliated against a state employee who was a source for a Nashville Scene investigation of TDOT’s oversight of Tennessee railroads.
Chief TDOT rail inspector Wayne Pugh, who has 36 years’ experience in the railroad industry, was abruptly relieved of his responsibilities less than two weeks after the April 16 Scene article hit the stands. Pugh was quoted by name five times in the Scene cover story.
The Scene article “Trouble at the Crossroads: Disasters in the making on Tennessee’s short-line railroads” disclosed that state and federal railroad officials have apparently jeopardized public safety after being successfully lobbied by influential local railroad companies. In the article, some state railroad safety inspectors, including Pugh, raised serious questions about policies they believed had led to unsafe conditions on some Tennessee railroads.
The inspectors were quoted by name and job title and spoke to the Scene with TDOT’s permission. A TDOT spokeswoman sat in on some of the interviews and encouraged the TDOT inspectors to “tell the truth” and to “stick to facts.” It appears that Pugh’s candid responses may have led to his undoing.
Sources familiar with the situation have helped the Scene recreate the following behind-the-scenes sequence of events:
♦ Pugh’s fate was apparently sealed when TDOT and FRA officials met in Atlanta on April 23, one week after the Scene article was published. Ben L. Smith, TDOT’s recently appointed director of public transit, rail, and waterway transportation, and Mal Baird, assistant director of TDOT’s Bureau of Operations, took part in the meeting. One of the items on the agenda was Tennessee’s railroad inspections. During the meeting, sources say, senior FRA officials told TDOT that Pugh had to go.
It was then, reliable sources say, that Baird told Smith simply to get rid of Pugh. Baird came under fire in the Scene article for allegedly playing favorites in allocating TDOT money to some local railroads at the expense of others.
♦ On April 28, Smith called a closed-door meeting at TDOT’s Nashville headquarters, where he warned rail safety inspectors not to talk to the media without going through the proper channels. Smith also told inspectors they were no longer to report to Pugh, but to another TDOT official, Terry Cantrell.
Cantrell currently runs TDOT’s railroad signal program and is responsible for distributing some $3.2 million in federal funds to upgrade signals at dangerous railroad-roadway crossings. The April 16 Scene story raised questions about Cantrell’s administration of the signal program. The Scene article quoted a senior FRA safety official who termed Cantrell’s oversight of the signal program a “joke.”
Smith acknowledges that Cantrell has no background or training in railroad inspections but says Cantrell has “good experience” working at TDOT.
Smith says it was entirely his own idea to transfer Pugh’s responsibilities to Cantrell. Smith says the shift was a necessary part of reorganizing the department to rebuild relations with the FRA. Smith says relations with the federal agency had become “strained” during Pugh’s regime. Smith strongly denies that the shift of responsibilities was in any way related to Pugh’s comments to the Scene.
♦ Meanwhile, FRA regional administrator Fred Dennin expressed anger at TDOT inspectors for supposedly cooperating with the Scene. The Scene story named Dennin as one of several railroad officials responsible for unsafe conditions on Tennessee’s rail lines. In a May 1 letter to Smith, Dennin said the FRA was “concerned” that some TDOT employees, whom he did not name, were “disruptive” to the safety program. He also threatened to take away Tennessee’s certification to do railroad inspections.
Employment law experts have raised questions about Pugh’s treatment by TDOT. “There is a public employee speech doctrine which protects what government employees say under certain circumstances,” says Robert Belton, a labor and employment law expert at the Vanderbilt University School of Law. If it were proved that TDOT retaliated against Pugh for his public comments, his right to free speech may have been violated, Belton says.
Business ethics specialists also find TDOT’s treatment of Pugh hard to stomach. When organizations encourage their employees to talk to the media, and the employees are punished for telling the truth, “it’s hard to find an ethical basis for defending that action,” says Bruce Barry, a professor at Vanderbilt’s Owen School of Management.
John Seigenthaler, founder of the First Amendment Center and chairman emeritus of The Tennessean, says, “The sad reality is that whistle blowers who put the public interest above politics historically have been punished for their candor. It is a tragic commentary on the insecurity of government authorities to chill speech which serves a higher public purpose.”
Smith told the Scene that TDOT will find new responsibilities in “rail safety” for Pugh. Smith says he’s unsure at this time what those responsibilities will be. Pugh has been out on sick leave since the week the article was published.
Meanwhile, Smith says, Pugh will retain his salary and benefits.
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