First the Pershing Park case. The Office of the Attorney General may have had serious trouble with another high profile lawsuit---the Georgetown Library fire case. In April 2007, a three-alarm fire gutted Georgetown's public library. Two hundred firefighters along with roughly two dozen trucks battled the blaze. That huge effort may not have translated into a thorough investigation into the fire's cause. Chief Dennis Rubin and Co.'s sloppy detective work may cost the city big time.

In a lawsuit stemming from the fire, a contractor has challenged the department's conclusions that heat guns caused the blaze. The contractor saw enough holes in the fire department's investigation to sue the District.  Whether heat guns caused the blaze or not, the lawsuit is making one thing clear: the OAG is having difficulties furnishing evidence and discovery materials.

And OAG lawyers are furious at fire department personnel.

If there ever was a fire that called out for a serious investigation, it would be the twin fires that gutted the library and Eastern Market. The Eastern Market fire continues to be a subject of debate. Apparently, according to e-mails obtained by City Desk, the Georgetown Library fire investigation was far from competent.

At one point, an OAG attorney calls into question whether fire investigators followed national standards, and whether those investigators should be punished.

On February 19, 2009, Assistant Attorney General Esther Yong e-mails two fire officials---then-Assistant Fire Marshal Bruce Faust and Lt. Craig Duck. She writes:

"Based on some of the deposition testimony, there are additional documents, photos, and information that we need from FEMS regarding the Georgetown Library fire investigation.

First, I understand from my conversation with Lt. Duck today that each fire investigator has a notebook in which he keeps notes relating to his fire investigation work. We need copies of all pages from all fire investigator notebooks that relate to the Georgetown Library fire.

Second, Firefighter Ford testified in his deposition today that he took a whole photolog of pictures that were not included in the Fire Marshal's report. Firefighter Ford testified that he did not remember to whom he gave the photos, but (presumably) he did give them to someone in FEMS. I understand from my conversation with Lt. Duck today that firefighter Ford should have created a photo log for those pictures and provided them on CD to Lt. Duck, but it appears that he did not do so."

Yong goes on to implore Faust and Co. to find those pictures. And yet, discovery issues continued to be a problem. Yong didn't return a call for comment before this story's deadline.

On April 6, 2009, OAG attorney Michael Stern e-mailed Faust, Duck and other department personnel concerning discovery problems. Stern wasn't happy with the department's foot dragging.

Stern wrote:

"This is a 13+million dollar law suit. Enough for DC to hire many firefighters, or lawyers for that matter (or avoid layoffs or furloughs). Is there nothing that can be done to get this information? The first e-mail request in this chain was sent mid-February. (Though the original discovery requests to FEMS were sent maybe as long as a year before that time). We are now facing two motions for sanctions for not providing discovery. If granted the sanctions could limit our ability to present information. We need more urgency in getting these responses than we have had so far."

Stern then zeroed in on the question of whether or not the fire investigators kept notes on their work. He wrote:

"On a related issue, we've sent many emails requesting investigator notes. We've gotten back replies that they do not exist. However, the national standards for fire investigation require all investigators on the scene document their observations with notes and diagrams. If indeed there are no notes or diagrams, both for the purpose of trial preparation and to respond to the motions for sanctions, can the investigators explain why they did not follow the national standards? Is it that they weren't trained on these standards, or they forgot, etc.? Also is there some process FEMS initiates regarding review processes and personal evaluations when they learn trained investigators do not follow national standards of care in investigating cases, or when FEMS does not get responses from their employees to the questions raised by supervisors in attempting to obtain discovery information for lawsuits?"

Stall Tactics

Stern's e-mails followed a motion filed by the plaintiffs compelling discovery responses from the District. In their 16-page missive, the lawyers more than suggest the District was stonewalling in turning over fire documents:

"The District is represented by the Office of the Attorney General, which has the responsibility to search each agency, division and department's records for responsive information. The District has not provided full and complete answers to the discovery in this case despite numerous extensions, and therefore this motion is necessary."

Discovery began in Sept. 2008, the lawyers write. The OAG responded by requesting one extension after another. According to their motion, the lawyers wrote the District on December 29, 2008 and asked for the promised documents; the response back was less than promising:

"The District responded that the majority of the documents that the District has were already produced (which was confusing because the District had produced very little documentation)."

On January 8, the District promised to send over two CDs worth of documents. But once the documents were turned over, plaintiffs lawyers argue that "it was apparent that the District's production was incomplete and superficial. [Plaintiffs were], to be blunt, shocked by the inadequacy of the District's effort after all the extensions up to that point."

The lawyers then raised a point that has been highlighted in the Pershing Park matter---the OAG's lack of control over the case. They write:

"The District was sending different lawyers to the various depositions, there seemed to be no central person responsible for tracking down the number of files that the District's witnesses were identifying during the course of their depositions and which had not been produced."

By mid-February, plaintiffs lawyers had begun deposing fire investigators. They write that "it was becoming apparent that the District had not obtained those complete files either, including investigator's notes and electronic data that Lt. Duck has recently confirmed would not have been included in the case jacket."

It gets worse. The lawyers write:

"After it became clear during the fire investigator depositions that the District's origin and cause investigation was mishandled, the District's promise of production were becoming suspect...There had not seemed to be a sense of urgency on the District's part to produce its files despite multiple promises and extensions."

Finally, six months after the discovery requests were made, the District sent over the much promised documents in early March. Still, this production fell well short, the lawyers contend:

"When the District's documents did arrive, it was readily apparent that the response was again incomplete. Many of the documents that the District produced were documents that the District had simple recopied from its prior production, or it simply recopied prior agency FOIA responses, although FOIA responses are considerably more limited than the discovery that the parties are entitled to in litigation."

Plaintiffs lawyers go on to describe how serious time and money have been wasted. Incomplete depositions have been taken. District witnesses have shown up without their own files.  Among the missing documents still outstanding: photographs of the fire scene, "the complete fire investigation file," "fire investigation protocols," investigator notes and electronic files, the fire investigators'  internal communications, and the investigators' external communications with D.C. Police, the ATF or any other outside agency.

One source says that he turned over his notes to his fire department superiors. It was only after he was approached by an OAG lawyer did he realize his notes had not be turned over in this case.

The source says that the stonewalling may have had to do with who was leading the library fire investigation: Lt. Duck.

"Duck had no training in fire investigation. He definitely wasn’t a certified fire investigator. He had no training in interviewing and interrogation. And he had already had started to interview people on the scene prior to my arrival," the source says. "[Duck] clearly just copied or cut and pasted ATF’s report making a few changes to see that it looked like his. He threw away valuable evidence. He threw away items---the debris from the roof which is where the fire started."

The source adds that Duck did not properly secure evidence that he actually held on to. The heat guns were kept in the investigative unit untagged.

The sloppy investigation may have inevitably led to a mishandling of a court case any fire department official should have seen coming. "Here we go once again, the fire department was not prepared with these situations," the source says. "These cases always come up."

He calls the department's handling of the fire and the subsequent investigation and lawsuit: "unprofessional, uncaring and basically ignorant."

"Now, they’re caught with their pants down," the source says.

"It was a botched investigation," says another source close to the case. "A lot of the documents never existed because the proper investigative steps were not taken at the Georgetown Library scene. When this happens, the fire department, instead of admitting their mistakes and making the necessary changes inside of the agency, they just cover it up....Clearly, it doesn't seem to be a priority in the fire department or the attorney general's office to correct these problems. It's just a continuation of the pattern of corruption and cover up in investigations."

OAG lawyer Stern refused to comment for this story. Plaintiffs attorneys also refused to comment.

When asked if the investigators' notes and photographs had been turned over, Lt. Duck told City Desk: "I have no idea."

Duck then referred all calls to the department's public information office. Fire officials refused to allow Faust to be interviewed for this story.

"We can not discuss the case because right now it's in litigation," explains Deputy Chief Kenneth Crosswhite.

AG Peter Nickles had an equally succinct reponse to this story. “I don’t think I can help you on that," he says. "It’s not on the top of my radar.”

*photo by Darrow Montgomery.

Trash fires are again becoming a trend in Capitol Hill. WJLA has a small story on the trend and notes that investigators are looking into it. Of course, the last time trash-can fires had worried Capitol Hill residents occurred around the time of the Eastern Market fire. The D.C. Fire Department quietly dispatched a team of investigators to try and apprehend the fire bug; investigators believed that there may have been a connection between the dumpster fires and the Easter Market blaze.

Fire Department investigator Greg Bowyer was part of that team looking into the previous dumpster fires. That investigation, he says, did not come to a proper resolution. "The investigation of the trash fires in 2007 were totally mishandled," he says. "This should be an indicator to the Fire Department that these mishandled fire investigations are not going to go away."

Bowyer says that the investigation was halted prematurely. One suspect had been arrested. But investigators were not able to definitively tie the suspect to the fires or definitively clear the suspect. The man never went to trial. He disappeared and was later found dead.

"Fire officials just assumed the person was caught. I was convinced that the investigation was not handled properly," Bowyer says.

Of course, there may be no connection between these fires and the ones that popped up around the time of the Eastern Market fire.

The 1D listserv has been spreading the word about the latest round of trash fires.

On Sunday one resident wrote:

"We live on 3rd St. SE between C and D and have had 3 dumpster/trash barrel fires in four weeks - the most recent one last Sunday (8.10) at @ 6am. I posted on this listserv just to warn folks in the area to keep lids closed (the fires seem to be in containers that are either open or have no lid, at least these three).

One of the several members of MPD that responded last week was a member of the arson investigation team, and they are aware of these fires.

I also received replies from Diane Groomes and Diane Durbin of MPD that they would pass the word along to Chief Faust."

Another resident was less than satisfied with law enforcement's response to the fires:

"Just noticed your original post and that there seems to be no follow-up by MPD-1D, though some follow-up was promised.

http://groups.yahoo.com/group/MPD-1D/message/10566

Our lid was on, having a lid on or off doesn't seem to matter much.
Again, according to me neighbor, there have been 24 such fires on the Hill, though I cannot confirm this.

Does not seem like arson is tracked on the various crimereports:

http://www.crimereports.com/

http://crimemap.dc.gov/presentation/intro.asp

Least there is no mention of these fires.

Word from MPD-1D would be reassuring.

Bob"

Late yesterday evening, Assistant Chief Diane Groomes responded on the listserv to "Bob":

"Sir- when we get the information from the Fire Department - ARson Task Force we will post .. they are the lead agency on such cases ... Dep Chief Faust has been contacted -t hey do not have access to this listserv at this time."

DC Fire/EMS spokesperson Pete Piringer tells City Desk that the fires have been set between the 200 and 400 blocks of Pennsylvania Avenue SE. "We don't have that many," he says. "In the last month, we've had maybe a dozen or so. We have some investigators working on it. We have some pretty good leads... I know we have some resources working on this one. We have some pretty good leads.”

*photo of Fire Chief Dennis Rubin by Darrow Montgomery.

In case you missed it: here's all you need to know about yesterday morning's federal court hearing on CFSA: In CFSA Case, Nickles Plays Defense; Judge Hogan Critical Of CFSA Director Selection Process.

Dee Does the District decides to not open up about getting terminated by DCPS. But this doesn't stop her from opening up about getting terminated by DCPS:

"I’ve decided to forego a big post in regards to my termination due to pending legal action and for my own personal privacy. Although I am deeply disappointed and incensed by the sweeping terminations, I feel relieved in a sense to be out of this broken system. I already have a number of upcoming interviews lined up at charters and in Northern Virginia and I’m looking forward to moving on to a school to values me and treats me like a human being."

The Heights Life raves about trivia night at Commonwealth: "You can expect the usual five rounds including a handout and an audio round - but to mix it up there are some rewards for speed and accuracy. And who knows - that might not be all he's got planned. This time those rounds seemed to go over particularly well, especially at my hyper-competitive table..."

And Now, Anacostia loves the Fenty Administration's crackdown on shady used car lots: "The slew of grimy / sketchy "used car lots" that weren't even legit businesses that lined many of the city's up-and-coming retail corridors. the administration heard the complaints that they weren't actually selling cars to the public, and in swoops the Fenty crackdown to get rid of them. Love it."

Runin DC pens not funny rap about Eastern Market. Is this now a trend---rapping about lame shit? Wait. This vid isn't supposed to be funny. I'm confused.

Greater Greater Washington has the most in-depth rundown of Metro's safety systems we've read. A must read not just for transportation nerds.

Pop Cesspool offers up a little MJ-related history lesson.

Young & Hungry gets Taylor Gourmet owner talking about picking a second location for his deli shop.

Photo by Darrow Montgomery

Two years after the fact, Ward 6 Councilmember Tommy Wells has gone on the record suspecting that the Eastern Market fire was arson. Wells tells the Voice of the Hill:

"'I have a tremendous amount of suspicion that it was arson,' Wells told the Voice immediately after the market reopened Friday."

Eastern Market re-opened today with the expected fanfare. Which is great. But it doesn't erase the screw-ups surrounding that massive blaze. In December 2007, we wrote a piece addressing the concerns of numerous fire fighters that the Eastern Market case was arson. Two arson investigators got bounced off their beat for making their concerns known.

It will be interesting to see what Wells does after all the celebrations this weekend. If he truly suspects foul play, what will he do about it? Will he fight for the jobs of those arson investigators? Will he hold a hearing on the fire? Will he question Fire Chief Dennis Rubin who insisted on an electrical cause for so long?

On Feb. 5, the department charged Pennington with falsely claiming that he is a certified fire investigator. In the charging document, the department writes: “The agency became aware of these facts on November 25, 2008.” Pennington insisted that he had the proper credentials.

"I knew the charges were groundless. It was retaliation," Pennington says.

If the charges lacked a certain shallowness, the motivations behind them had a deep history. For the past few years, Pennington and fellow fire investigator Greg Bowyer had become outspoken on the subject of their department, alleging that serious fire cases had been botched by inexperienced investigators and that the bad cases had been essentially covered up by top brass.

The two had sent countless e-mails up the chain of command. When those e-mails and subsequent meetings failed to produce results, they talked to the press.

Pennington and Bowyer had keyed on the controversial investigation into the Eastern Market fire. The two had spoken out last November to WJLA. By then the two had been transferred off the arson beat and put into details that had Pennington serving snacks to crews at fire scenes and Bowyer checking hydrants. We profiled Bowyer's plight.

The department appeared to ratchet up its efforts to remove the two once the Post took notice. The day after Courtland Milloy published a column on Bowyer and Pennington, the fire department served Pennington with charges that he had falsely claimed to be a certified fire investigator. A full timeline of the whole saga can be found here.

"It's extremely insulting," Pennington says. He had been a fire investigator since late 2001. "I'd written well over 500-to-600 reports." He adds that he and Bowyer have close to a 100 percent conviction rate.

On June 1, Pennington's attorney David Marshall wrote a letter to Assistant Attorney General Charles Tucker outlining why the the charges against his client were bogus. Marshall describes the charge as "patently frivolous and intended only to retaliate against Mr. Pennington for his exercise of his legal rights."

The charges stem from the fire department adopting a new policy over certifications. The new policy meant that a certified Pennington was not quite certified under the department's new regs. It then charged Pennington with violating this policy. Here's the catch: they charged him with violating the policy two months before they had adopted it. Marshall goes on to write:

"The due process violation grows out of the fact that the fire department seeks to penalize Mr. Pennington for violating a policy that did not exist at the time of his supposed infraction. The department first promulgated its policy against using the designation 'CFI' absent certification by the International Association of Arson Investigators ("IAAI") on December 9, 2009---two months after the October 9, 2008, incident that forms the basis for the charges....Because the rule was not in place when Mr. Pennington designated himself a CFI on a FD Form 23 on October 9, 2008, it would violate due process to apply the rule retroactively and to prosecute him on these charges.

In addition to accusing Mr. Pennington of violating a non-existent policy, the fire department seeks to punish him for listing his CFI credentials accurately and in a way that the relevant accrediting authorities agree was completely acceptable."

In the Milloy piece, AG Peter Nickles attacked both Bowyer and Pennington. He was in full war mode:

“It’s quite an effort that these two guys are making, giving TV interviews, filing complaints," Nickles told told Milloy. "We dispute almost everything they claim, including that they are individuals of distinction.”

So the OAG's turnaround comes as somewhat of a surprise. Marshall praises the OAG for not going forward with its case against Pennington. "The department was so eager to victimize Pennington, that they went out of their way to charge him with false stuff," says Marshall. "It was such a blatant attempt to railroad a fire fighter for having spoken out about wrongdoing at the top that the Attorney General and the fire department decided to do the right thing."

Bowyer faces his own set of charges and is scheduled to go before a trial board on June 15 and June 16. "Those charges are false," Bowyer says. "I'm really happy for Pennington. I hope the OAG does the right thing in my case as well."

Pennington is still on hydrant detail in the community service unit. He says the fire department still won't admit that he is a qualified, certified fire investigator.

This week I chronicled D.C. Fire Department arson investigator Greg Bowyer. Bowyer, along with his partner Gerald Pennington, went from working arson cases to checking fire hydrants. They allege their demotion wasn't for any performance reason. No. They got transferred because of their whistleblowing activities.

For more than two years, Bowyer and Pennington have waged a campaign to right a fire department that they allege has routinely bungled major fire cases like the Eastern Market fire and the Mount Pleasant fire, and put in place untrained and unqualified fire investigators. For their efforts, they got placed on hydrant duty.

I just posted a timeline of their activities. And it definitely appears that when they've talked to the press whether it's WJLA or Courtland Milloy, the departmental hammer has come down. For my cover, Fire Chief Dennis Rubin and Attorney General Peter Nickles refused to comment about the whistleblowers' claims.

But I wonder what will happen to them now? Is there a position in the fire department lower than hydrant checker? I hope my story didn't mess them up.

Last night, WJLA reported that a pair of D.C. Firefighters are readying a civil lawsuit aimed squarely at D.C. Fire Department Chief Dennis L. Rubin. This fight has been brewing for years. The firefighters are claiming that their own department has botched numerous fire investigations and that the upper brass retaliated against them when they complained within the department and to the media. The fight heated up soon after the Eastern Market fire which some investigators say was arson.

The fight over the Eastern Market fire did not sit well with Rubin apparently. I know first hand how Rubin handles tough inquiries into that case. But investigators persisted. They complained about how the Mount Pleasant fire was handled and so on. Meanwhile, Rubin was still Chief Rubin.

The inevitable happened. Two whistleblowers---D.C. Arson Investigators Greg Bowyer and Gerald Pennington---were transferred to something called the Community Services Unit and generally toyed with. Now Bowyer and Pennington are fighting back. They plan on filing a lawsuit this week. They have scheduled a press conference for tomorrow at noon at Eastern Market. Last night we reached Bowyer.

So what is the community service unit?

"We're not doing anything," Bowyer says. "We may install one smoke detector a week. Other than that, we sit in a firehouse and do nothing. Pennington has been assigned to the rehab unit. What he does is serve snacks to firefighters---granola bars and coffee and hot chocolate. The community service unit is a complete waste of time. It's six of these units around the city and they do nothing."

They've been on smoke detector and hot cocoa duty for some time. "It's actually been longer than six months," Bowyer says. In October, Bowyer says the department charged them with interfering with government operations related to a June fire at 317 L Street NE. Bowyer says there were problems with the way the L Street fire was investigated. And he had made noise about that case.

Bowyer says they have a tape of an official either bragging or warning that they were going to use the investigation to set them up.  This official told them to not get involved with the L Street case---"that it was a set up."

By then, as the existence of the tape attests, Bowyer had been using his investigative skills for more internal matters like clearing his name and fixing the way the department investigates fires. Boyer says he's had a 100 percent arrest and conviction rate. "I had the highest conviction rate in the department's history," he says. In June, he filed a complaint within the department. In August, he filed an EEOC complaint.

"Since Eastern Market, more than half of the cases have been botched," Bowyer says. It was hard for him to stand aside and just watch cases get mishandled by inexperienced and under-qualified investigators or see Rubin jump in front of the first microphone---like at Eastern Market---and spout off without solid facts.

They aired their complaints up the chain of command and to the D.C. Council. At best, these complaints were met with indifference.  They then went on WJLA and aired their grievances.

After the WJLA story ran, the fire department ordered them to write a special report, Bowyer says. He adds that as far as he knows the department never responded to the EEOC complaint. He says his whistleblower/retaliation lawsuit is aimed at a) probing the department's misconduct and b) changing the way the department handles investigations.

Bowyer also hopes the lawsuit will impact Rubin's employment. "If you talk to firefighters, the majority of the firefighters are not happy with him as a leader," Bowyer says. "We do not see that accountability and transparency that he publicly projects...It's the opposite. We know the dark figure of Rubin."

Bowyer goes on to say:

"So many people are afraid to come forward. Hopefully by coming forward we will facilitate some serious change....Hopefully that change includes top leadership and Rubin. That will be more important than money at this time....It's been awful for my immediate family and for my extended family. This administration has put members against members, front line against management. It's just an awful day for the department and an awful day for the city.

This leadership has managed to divide the department from black to white, from the department and the community. There's a level of distrust that hasn't existed in years."

As Bowyer prepared to file the lawsuit, the hits have kept on coming.

"I have an incident right now where a supervisor, who is a good supervisor, has been forced to falsify an official document at the behest of officers who work directly under the fire chief," Bowyer says. "I have documents in support of that....This is all in an effort to find something negative on us."

"The last thing we want to do is sue our own department and our own city. Chief Rubin has given us no choice," Bowyer says.

*photo of Eastern Market fire by Arthur Delaney.