After employee's death, Palo Alto fights charges of safety violations

City's appeal of Cal/OSHA citations drags on after 2019 accident that killed Donatus Okhomina

Power lines and transformers at the East Meadow substation at the intersection of East Meadow Drive and Middlefield Road in Palo Alto on Jan. 31, 2022. Photo by Magali Gauther.

News

After employee's death, Palo Alto fights charges of safety violations

City's appeal of Cal/OSHA citations drags on after 2019 accident that killed Donatus Okhomina

Power lines and transformers at the East Meadow substation at the intersection of East Meadow Drive and Middlefield Road in Palo Alto on Jan. 31, 2022. Photo by Magali Gauther.

Donatus Okhomina Jr., was on his fifth day on the job as an electrical lineman for the city of Palo Alto Utilities when he went out on what would prove to be his final assignment.

Okhomina, 42, was part of a five-person crew that was scheduled to replace two transformers that were mounted on a pole and then move two high-voltage lines affixed to a crossarm closer in. Joining him for the work at a substation near the corner of Middlefield Road and East Meadow Drive were foreman George Hauper, a 12-year veteran of the Utilities Department, journeyman lineman Jose Rivera, electrical assistant Steven Melo and apprentice lineman Collin Williams.

The crew began work at about 6 a.m. on Nov. 16, 2019. The employees positioned their articulating boom lift — an Altec AM60 utility truck equipped with high-reach baskets — near the utility pole with the transformers, next to the Covenant Presbyterian Church. The plan was to de-energize the transformers, strip all the old equipment and then relocate the lines and install new equipment, according to documents from the California Division of Occupational Safety and Health, known as Cal/OSHA, that were obtained by the Palo Alto Weekly through a Public Records Act request.

There was nothing unusual about this assignment. Palo Alto's linemen work on electrically energized (or "live") lines, as well as on de-energized power lines, just about every day, according to the city. At times, their assignments involve other tasks such as installation of services, replacement of distribution equipment and installation and maintenance of underground power lines.

"What's really been tough about this situation is — it's routine work." Utilities Director Dean Batchelor later told the Utilities Advisory Commission. "We looked at averages that we had over the past four years, (and) we routinely do this work. ... About 42 times a year, we replace transformers that are up in the air."

Help sustain the local news you depend on.

Your contribution matters. Become a member today.

Join

The task on this day was split into two parts. The first called for two employees, working in separate buckets, to work on the de-energized equipment. The second part required two employees to get hoisted up in the same bucket so that they could work on the high-energy voltage lines. The buckets included sleeves containing tools such as insulated gloves, which the linemen would be required to use for the second, dangerous task.

Donatus Okhomina. Courtesy city of Palo Alto.

Okhomina, wearing a hard hat, fleece hoodie and leather gloves, got into one of the two buckets, which was then lifted about 38 feet off the ground on the south side of the pole. About three feet beneath him was a bucket occupied by Rivera, who in 2019 had been with the Utilities Department for 12 years.

The rest of the crew was on the ground, according to documents from Cal/OSHA. Williams was preparing the new transformer for installation while Haupert and Melo were having a conversation, according to notes from the investigation.

Stationed in the lower bucket, Rivera proceeded to unbolt the old transformer on his side of the pole, reportedly with the understanding that Okhomina would hold the equipment from his side. Then things got out of sequence. At about 9:40 a.m., Okhomina called down to Williams to ask for a grip — an unusual request given that neither the tool nor Okhomina's leather gloves were insulated to protect against the high-voltage lines that, at that moment, were about 2 feet away from him.

No one, however, apparently gave it much thought at the time. Williams sent the grip through the hand line on Okhomina's bucket and proceeded with his prep work. Haupert was talking to Melo, according to Cal/OSHA, and did not hear Okhomina make the request.

Stay informed

Get the latest local news and information sent straight to your inbox.

Stay informed

Get the latest local news and information sent straight to your inbox.

Neither, evidently, did Rivera, who was preoccupied with his own task of removing the transformer. He told a Cal/OSHA investigator just after the accident that he didn't know why Okhomina made the request. Maybe, he surmised, Okhomina was "trying to stay ahead of the game."

"I wonder if he got ahead of himself," he said, according to Cal/OSHA notes.

None of the four crewmates saw Okhomina, holding a non-insulating grip in his leather glove, approach the two high-voltage electric lines of 4,160 volts. By the time Rivera looked up, it was too late. An electric arc formed between the two high-voltage lines, right where Okhomina was standing, instantly electrocuting him.

Melo told an investigator that he heard a scream and saw fire. Williams said he heard the arcing above him.

The crew reacted quickly. Williams got into the truck and lowered Okhomina's basket to the ground while Melo ran over to the Mitchell Park fire station to get help, according to Cal/OSHA documents. Though there were no fire engines at the station, Battalion Chief Steve Lindsey was there and he rushed to the accident site and tried to resuscitate Okhomina using CPR.

Police records show that paramedics were still trying to revive him at 10:34 a.m., though by that point, an officer at the scene reported the incident as a "possible fatality." His fleece KwikSafety hoodie was scorched through at the lower neck area and his leather glove was still stuck to his hand as he was rushed by an ambulance to Stanford Hospital.

Okhomina was pronounced dead at Stanford later that afternoon. Stanford's emergency room staff lined the exits as Okhomina's body was transferred out of the emergency room, according to City Manager Ed Shikada, and on-duty fire units assembled in salute as he was transported out of the hospital. He was the city's first utility employee to die in the line of duty in more than three decades.

The investigator's findings

What went wrong that day? That's a question that Palo Alto and Cal/OSHA, the state agency charged with enforcing and improving workplace safety, have been investigating and disputing for more than two years. And who is to blame is a question that remains open to this day.

The agency, which is part of the California Department of Industrial Relations, began its investigation immediately after the accident. By May 2020, the agency concluded the city had committed eight safety violations, some of which directly contributed to Okhomina's death. The city is appealing these citations — a process that is expected to take months, if not years, to resolve.

Donatus Okhomina, 42, was died by electrocution while replacing a transformer at a substation near the corner of Middlefield Road and East Meadow Drive on Nov. 16, 2019. Map by Jamey Padojino.

Cal/OSHA inspector Geraldine Tolentino found that the city had violated a long list of state laws, with devastating consequences. Her investigation included interviews with all of the employees involved in the incident as well as reviews of all equipment that was used during the operation and of all relevant city policies. What she found prompted Cal/OSHA to slap Palo Alto with eight citations, seven of which fall into the "serious" category — the most egregious class in the agency's taxonomy. The only citation that fell into the "general" category pertained to the city's failure to investigate an occupational injury — a charge that the city has formally challenged. When asked what the city's review of the incident entailed, Shikada declined to comment, citing advice from legal counsel and the city's pending appeal of the Cal/OSHA citations.

The other seven citations touch on everything from Okhomina's qualifications to perform the dangerous work to the failure of his colleagues to ensure his safety. Five of the citations carry the agency's maximum penalty of $18,000 each.

Specifically, Cal/OSHA concluded that the city had:

• Failed to ensure that only qualified workers work on high-voltage systems, as required by state law.

• Failed to ensure that a qualified worker is acting as an "observer" for the purpose of preventing an accident or rendering immediate assistance in the event of an accident, as required by the state's Code of Regulations.

• Failed to prevent employees from approaching a conductive object without an approved insulating handle as they got within the minimum distance of a conductive object, as established by an employer (in this case, 25 inches).

• Failed to make sure that each employee working near energized high-voltage lines is provided with and wears "suitable and flame resistant apparel."

• Failed to ensure that employees working on exposed energized conductors within reach of any part are covered with "suitable protective equipment." As a result of this failure, the citation states, an employee was electrocuted when the grip he was holding came within reach of the exposed high-voltage lines.

• Failed to ensure that precautions are taken to protect an employee from "accidental contact between the energized high voltage conductors."

• Failed to adopt provisions to "isolate and insulate the employees" during work in which conductors are being installed, relocated or removed and when there is "a possibility of the conductors accidentally contacting an energized high-voltage circuit or receiving a hazardous inducted voltage buildup."

The city is appealing all eight violations and claiming in most cases that Cal/OSHA's classification of these violations is incorrect and that its proposed penalties, which add up to $104,060, are unreasonable.

Furthermore, it is also asserting in its appeal that nearly all of the alleged violations cited by Cal/OSHA were the result of "independent employee action." The appeal does not specify whether the "employee" refers to Okhomina or one or more other utility employees.

Making the citations even more egregious, Cal/OSHA is also stating that some of the city's transgressions are part of a pattern that extends well beyond the November 2019 incident. Each Cal/OSHA citation is accompanied by a "supplemental worksheet" that provides more context for the inspector's decision to cite.

While Haupert reportedly told Tolentino that Okhomina was a qualified worker and that he had relied on Okhomina's past experience, he was unable to furnish any training records to substantiate this conclusion.

The foreman, according to Cal/OSHA, was confident that Okhomina "knew the job based on observing him on a similar job two days prior, although the job was not exactly the same."

The city did have reasons to feel confident about Okhomina's qualifications to do the job. According to his resume, Okhomina had worked in the electric utility industry since June 2000, when he began a five-year stint as a journeyman lineman with the International Brotherhood of Electrical Workers, Local 1245. He then moved on to the Sacramento Municipal Utilities District, which provides electrical services to the city of Sacramento, and held numerous positions there, including an electrician, a supervisor of cable splicers and a substation assets supervisor, which involved clearing transmission lines.

Most recently, he worked as an electrical supervisor at PG&E, where his responsibilities included training and development of work crews. What's more, his employee transcript from PG&E showed that he had completed numerous courses relevant to the job at hand, including ones focused on personal protective equipment and safety in electric operations.

But after city staff weren't able to furnish Okhomina's training records, Tolentino concluded that the city had failed to comply with a state law requiring employers to make sure only qualified electrical workers work on energized high-voltage systems. Had it followed the law, she noted in her report, Okhomina would not have been alone in the bucket.

Tolentino, whose investigation included interviews and correspondence with the crew at the scene, utilities management, Human Resources and a representative from Service Employees International Union, Local 521, which represents Okhomina and other linepersons, also regarded the lack of an observer as a "common practice" at the job site and notes that the employer had received complaints from other employees about this type of violation. Even though there had been three other workers in close proximity to Okhomina, none of them were functioning as observers, according to Cal/OSHA. The foreman, Haupert, reportedly did not see Okhomina request the grip because he was talking to Melo. And Rivera was busy unbolting the transformer while Williams was passing the grip on to Okhomina.

Tolentino also stated that not wearing proper protective equipment such as rubber gloves and flame-resistant apparel was common practice in Palo Alto. The violation, she noted, occurred while supervisors were in close proximity. If Okhomina had "worn flame-resistant apparel, (his) clothing would have not burned," her report states — and he would not have been electrocuted.

Craving a new voice in Peninsula dining?

Sign up for the Peninsula Foodist newsletter.

Sign up now

The inspection reports suggest that the city's failure to cover the high-voltage line in protective equipment and to ensure that employees maintain a safe, established minimum distance also fit a broader pattern. Neither the inspectors nor body camera footage from Palo Alto police officers who responded to the accident show any protective covering of the high-voltage lines, according to Cal/OSHA.

Finally, after Palo Alto had failed to furnish a report on its accident investigation to Cal/OSHA, the agency also classified this violation a "common practice at job site."

City officials have declined to discuss the Cal/OSHA investigation, citing advice from legal counsel and the city's ongoing appeal. But City Manager Ed Shikada and Utilities Director Dean Batchelor both said in a recent interview that safety is — and has been — the department's top concern. They pointed to numerous steps that the city has taken since the accident to improve safety, including strengthening rules for verifying the qualifications of new employees and instituting a new requirement that all utility employees working in the field wear city-issued clothing and personal protective equipment.

Shikada emphasized, however, that these actions do not in any way imply that the city shares Cal/OSHA's assessment that these factors caused the fatal accident. Rather, he said, they are part of the city's continuous push to improve safety.

"It's really important not to assume that the reinforcement we're describing is directly related to this incident," said Shikada, who served as a utility director before becoming city manager. "The fact that following a tragic incident we are reinforcing our practices is in no way intended to suggest that this is what we're communicating as causes in that case."

The emotional aftermath

Okhomina's tragic death notwithstanding, Batchelor said the city takes great pride in its safety record.

"We keep track of every day that we have no lost time to accidents," he said.

Prior to Nov. 16, 2019, the electric operation had tallied more than 1,600 consecutive days without lost time, he said. That day, the counter tallying the days was reset to zero.

Before Nov. 16, 2019, Palo Alto Utilities had recorded more than 1,600 consecutive days without lost time. Photo by Magali Gauthier.

Workplace fatalities in Palo Alto are thankfully rare. According to Cal/OSHA, three individuals have died in the line of duty since 2017. In May 2018, a landscape worker died while cutting a tree, when a branch that his rope was tied to fell into a woodchipper, dragging him along. Two months later, a worker died after he was crushed by a Bobcat skid steer with a sweeper that backed into him.

Serious accidents involving city workers are rarer still. So when the accident happened, it sent "a shock way through the entire city family," Shikada said. One of the city's priorities in the aftermath was to make sure that utilities employees had all the support they needed.

Batchelor said the city offered grief counseling to employees throughout the department. The city also offered additional time off to the employees who were part of the crew.

"Two took a few extra days off; two decided they wanted to come back to work right away, the following Monday," Batchelor said. "They were grieving in their own ways as well."

Shikada notified the entire workforce about the accident later in the afternoon, through a citywide email. The message did not provide details about what happened but rather informed employees that the person was injured and transferred to a local hospital, where he died from his injuries.

"This is a sad reminder of the risks involved in the critical functions that our Utilities employees perform daily," Shikada wrote.

Shikada did not disclose the name of the employee because the family had not yet been notified. He invited employees to take advantage of the counseling services provided in the Employee Assistance Program and assured them that the Human Resources department was standing by to assist them.

"In challenging moments like this it is truly a testament to the caring and commitment of our people that we pull together as one city family," Shikada wrote.

The following day, he followed up with another email informing staff that the employee involved in the workplace incident was Donatus Okhomina, whom Shikada described as a "veteran of the United States Air Force and a seasoned electrical lineman." He informed employees about the GoFundMe account that the Utilities Department opened to support Okhomina's family, his wife, Tammy, and his four daughters, aged between six and 17 at the time of the accident.

"I know we all have his family and loved ones in our thoughts and in our hearts," Shikada wrote.

More than 900 people donated to the account, which passed its $75,000 goal within days and, as of now, has received $105,000 in donations. The city's main firefighter union, International Association of Firefighters, Local 1319, contributed $2,000; SEIU, Local 521, the city's largest employee group and the one that represented Okhomina during his brief tenure in Palo Alto, donated $250.

A GoFundMe page to support the family of Donatus Okhomina raised a total of $105,000 in donations. Courtesy Donatus Okhomina Memorial GoFundMe page.

Testimonials poured in for Okhomina, a Mississippi native who served in the United States Air Force before settling in Dixon with Tammy, a nurse in the local school district, and raising four daughters. His friends recalled his fondness for riding motorcycles, practicing jiu jitsu and spending time with his family.

Corey Sales, a colleague from Travis Air Force Base, recalled Okhomina installing chrome Dayton rims on his green truck and riding around the airport base. Another friend, Vic Baker, recalled the motorcycle trips they took together. Ernesto Veil called him "the kind of friend that leaves a mark on your heart and in your life."

Rumi Portillo, who contributed $1,250 on behalf of the city's executive leadership team, recalled seeing Okhomina at the orientation just days before the accident, which included taking a bus tour of the Stanford University campus and other local landmarks.

"Donatus talked with us about his family, his home in Dixon and his excitement for the new job," Portillo wrote. "Donatus stood out for his bright energy, humor and wonderful smile. We are deeply saddened and extend our sincerest condolences to the Okhomina family."

Batchelor also said that Okhomina was looking forward to working in Palo Alto, which he saw as more stable than his prior jobs.

"He was very excited about having the opportunity to be here," Batchelor told the utilities commission on Dec. 4.

City leaders also tried to offer support to the Okhomina family in other ways. Shikada, Portillo, Fire Chief Geo Blackshire, Batchelor and City Council member Alison Cormack all went to Dixon on Nov. 23 to pay their respects at Okhomina's funeral at Living Hope Church. The service included an honor guard from the city's Fire Department.

On Dec. 9, 2019, the council held a moment of silence for Okhomina and passed a resolution in his honor, calling him a "beloved father, friend and colleague who chose to serve his community in a very high risk but critical role as a lineperson with the city of Palo Alto."

Cormack recalled Okhomina's funeral, during which the family was presented with the U.S. flag.

"It was my honor to travel to Dixon for Mr. Okhomina's funeral, to pay my respect and our respects to his family, to hear each of his four daughters speak about what his presence was like in their lives and to see his family receive the folded flag that was a mark of respect for his service," she said.

The city places blame

Cal/OSHA has stated that some of Palo Alto's transgressions are part of a pattern that extends well beyond a fatal workplace accident at the East Meadow substation in November 2019. Photo by Magali Gauthier.

Aside from internal communications and words of condolences immediately after the accident, Palo Alto officials have had little to say publicly over the past two years about the incident and what they're doing in response.

The Utilities Advisory Commission did not review the city's safety procedures or issue any recommendations. Council members did not hold any hearings to discuss what went wrong that day and how the city could improve safety. The deadly incident has not come up once during Shikada's public comments at council meetings, in informational reports or during council discussions.

Shikada said in an interview that the lack of hearings on safety protocols does not in any way suggest that the incident was not being taken seriously. Rather, it's a reflection of his view that the issues surrounding the accident are not a matter of setting new policies — which would involve the council and the utilities commission — but of improving internal operations.

"I really see this as operational issues," Shikada said. "These are areas we're focusing on on an ongoing basis."

The Weekly also contacted members of Okhomina's crew from the day of the incident. None of the employees responded, and the city declined the Weekly's request to talk to them. Shikada and Batchelor also declined to discuss whether anyone faced discipline after the accident, though they confirmed that all four employees who were part of Okhomina's crew are still working for the city.

But even though the city's public response has been relatively muted since December 2019, utilities administrators have taken a stronger stance in court filings and appeals, which largely diverted blame away from the city and pinned it on Okhomina himself.

This position is most evident in the city's response to a claim that Tammy Okhomina filed against the city in September 2020, alleging "serious and willful misconduct." The claim, which was submitted by her attorney, Mark Vickness, noted that Donatus Okhomina received no training from the city of Palo Alto and argues that the city "knew of a dangerous condition on the worksite and failed to provide a safe working environment as required by applicable law."

"These failures resulted in the electrocution, which caused Mr. Okhomina's death," Vickness wrote in the claim.

In a January 2021 filing to the Workers Compensation Appeals Board, an attorney representing the city responded to the claim by denying that Okhomina was electrocuted while performing the task that he was instructed to do: hoisting and lowering the second transformer off the pole. Instead, Okhomina "willfully deviated from that task and, for reasons unknown, moved his bucket into the contact area placing himself between the two phases of high voltage energized lines," the city alleged in a filing that was obtained by the Weekly.

"Applicant willfully violated the instructions he had received earlier that morning from the city's foreman, George 'Tom' Haupert, in doing so," wrote Adam Ambrozy, an attorney with the firm Lenahan, Slater, Pearse & Majernik LLP, in a response to Tammy Okhomina's claim.

The city claimed that Okhomina's "unilateral and substantial deviation from the task at hand resulted in the violations of most, if not all, of the safety orders" that were cited in Tammy Okhomina's petition.

'The fact that following a tragic incident we are reinforcing our practices is in no way intended to suggest that this is what we're communicating as causes in that case.'

-Ed Shikada, city manager, Palo Alto

Okhomina, the city maintained, "acted in such an unforeseeable way that Defendant had no way to anticipate such actions, especially since it was contrary to earlier instructions Applicant received that, if followed, would have prevented Applicant's death."

"Applicant's own serious and willful misconduct caused his death," Ambrozy wrote. "Applicant was instructed to act as a hoist to support and lower the transformer that was being taken off the pole by another city employee. Applicant substantially deviated from that task before the transformer was removed."

The city also claimed that Okhomina was instructed that any work near energized high-voltage lines would require rubber gloves and that such work would need to be performed with two men in the same bucket. He violated both sets of instructions, the city's response states, and as a result "willfully placed himself in the contact area and was electrocuted."

The city noted in its response that Okhomina had rubber gloves in his bucket, though he chose not to use them.

While the city also challenged Cal/OSHA's claim that Okhomina did not receive proper training, its response suggests that the city relied primarily on his past experience, rather than firsthand observations, as evidence that he could perform the task at hand. Okhomina had represented to the city that he "had been working in the field since 1996 and had extensive experience in this line of work," Ambrozy wrote.

The city's response to Tammy Okhomina's claim also takes issue with the Cal/OSHA investigation, which it claims was neither thorough nor "based on fact."

"In fact, Cal/OSHA's findings from its investigation make clear that it relied on speculation and conjecture to support several of its key findings," the city's response states, without specifying to which findings, speculations or conjectures it is referring.

City administrators have also made it clear to its own workforce that it disputes Cal/OSHA's findings about the various alleged violations that led to Okhomina's death. In July 2020, three months after Cal/OSHA issued its citations, Batchelor expressed the city's official position on the agency's findings in an email to utilities employees.

"The city does not agree with these allegations and we are working with the City Attorney, Human Resources and City Manager's Office on the city's appeal," Batchelor wrote.

'These failures resulted in the electrocution, which caused Mr. Okhomina's death.'

-Mark Vickness, Tammy Okhomina's attorney, who wrote in a claim against the city

He criticized Cal/OSHA's finding that the city's failure to properly train new employees contributed to the accident and the agency's conclusions that Palo Alto had failed to ensure that "only qualified electrical workers worked on energized conductors or equipment connected to energized high-voltage systems" and that an employees has "demonstrated proficiency in the work practices" before they are considered "properly instructed/trained."

"For this instance, we are convinced Donatus Okhomina met the qualifications and was appropriately skilled for the position," Batchelor wrote.

However, he said, "While the city is not in agreement with these allegations, we recognize there are ways to improve as an organization and we are re-examining existing safety practices and protocols. The city has already made and will continue to make internal improvements to a number of areas throughout the department."

The city is prioritizing three areas, Batchelor wrote: hiring and onboarding; training and workplace practices; and a new safety officer, a position that was filled at the time of the accident but that became vacant in December 2019, when the person who was filling it retired.

With respect to hiring, he wrote, "I have asked Human Resources to work with an industry expert to build in additional screening steps and to look more broadly at our hiring practices throughout the department."

Batchelor also wrote that he was working with the management team to update the department's training materials and had changed the reporting structure so that the new safety officer would report directly to him.

The city has changed numerous policies since the accident, Batchelor said in a Jan. 20 interview. In the past, when new employees would come on board, the city would sometimes allow them to wear their own fire-resistant clothing for the first few weeks, while the city worked to get their equipment properly sized. That is no longer allowed.

"Now, the new policy is that any person in the electrical organization that needs fire-resistant clothing, it's got to be issued by the city before they start to enter any type of situation with energized lines," Batchelor said.

The city also now asks new employees to provide certificates of training and other proof demonstrating their proficiency. This allows the city to follow-up with the training facility and to ask the employee during the interview process more specific questions about the safety protocols and procedures to which they are accustomed.

Unanswered questions

Power lines and a utility pole at the East Meadow substation at the intersection of East Meadow Drive and Middlefield Road in Palo Alto on Jan. 31, 2022. Photo by Magali Gauther.

The city's response to Cal/OSHA's citations leaves open a litany of questions. Why didn't anyone on the crew stop Okhomina from deviating from normal procedure? Why was he provided with a non-insulated grip? Why was he allowed by his supervisor to be alone in the bucket if he was about to move live wires? Why wasn't he required to wear rubber gloves or other protective equipment? Did he receive any training at all from the city before he went up in the bucket? And do the violations cited by Cal/OSHA truly represent a pattern of laxity on the city's part or were they a one-time, tragic confluence of errors?

These are questions that the city had declined to discuss, pending the conclusion of Cal/OSHA's investigation.

But even as the city continues to deny that it committed any safety violations, it also took steps late last year to avoid liability for the accident. In mid-December, the city settled with Tammy Okhomina over her claim that the city engaged in serious and willful misconduct. Under the settlement, she and her four daughters will receive $580,512 for their benefits claims, which will be paid largely through the city's life insurance company, PSI. The settlement is costing the city, PSI, and the company Prism, which provides excess coverage, a total of $705,234, with $80,000 going to Okhomina's attorney, Vickness. (Neither Vickness nor Tammy Okhomina responded to numerous inquiries from the Weekly about the 2019 incident and the city's response.)

The total also includes a $30,000 payment to the Okhominas to prevent them from suing the city and $5,000 to Vickness. The settlement states that the city is settling a disputed claim and that its payment "shall not be construed as an admission of liability on the part of the city of Palo Alto."

Meanwhile, the Cal/OSHA process continues to drag on.

In May 2021, the agency informed the city that the criminal aspect of the case had been closed. While the agency had declined to provide any information relating to the criminal investigation, Cal/OSHA's decisions on criminal charges for workplace accidents typically hinge on whether the violation leading to the workplace fatality were done "willfully." For the agency, the term "willful," which was defined in the 1975 case United States v. Dye Construction, pertains to circumstances where an employer "having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement."

Palo Alto's violations, while serious, apparently fell short of that standard, according to Cal/OSHA. Ambrozy underscored in his response to Tammy Okhomina's claim that the agency did not find the city's violations to be "willful."

Meanwhile, the city's appeal of the civil citations remains ongoing and is unlikely to be resolved any time soon.

James Hinson, an attorney who specializes in Cal/OSHA appeals, told the Weekly that cases typically take between 12 and 15 months to get through the system. Palo Alto filed its appeal in July 2020, and the case has yet to get to an appeals board hearing. The two sides have held numerous status conference hearings and, as of early January, were preparing to schedule another one but had not settled on a date.

Hinson said an appeal by an employer typically goes to a Cal/OSHA Appeals Board judge. If the judge's decision is appealed by either the employer or the state, the case would go to the three-member Cal/OSHA Appeals Board for a final verdict.

'While the city is not in agreement with these allegations, we recognize there are ways to improve as an organization and we are re-examining existing safety practices and protocols.'

-Dean Batchelor, utilities director, Palo Alto

Hinson suspected that because the Palo Alto case involves a fatal accident, Cal/OSHA is not likely to drop all or most of the citations. He noted that some of the citations issued by the state agency pertain to details that are difficult to dispute, such as the fact that Okhomina was not wearing rubber gloves.

"It's unlikely that they'll drop the charges because the facts are there," Hinson said.

But even if the appeals board is unlikely to drop all the citations, other recent cases involving workplace fatalities involving electrocution suggest that a settlement with a reduced fine is a strong possibility. The Palo Alto incident was one of 18 fatal electrocutions that occurred in California between March 10, 2017 and July 1, 2020, according to Cal/OSHA data. Two of them occurred in San Jose: one in February 2018, when a chainsaw operator for a landscaping company was trimming a 12-foot-long tree branch that made contact with a power line; and another in July 2018, when an employee of a remodeling company was electrocuted while connecting wiring as part of a kitchen renovation.

After investigating the two San Jose cases, the agency issued the landscaping employer, Rafael Munoz, a fine of $23,350, which it later reduced to $11,400 in penalties. The renovation company, Douglas Hsiung and Amy Wang-Hsiung, was initially fined $33,555. The penalty was later reduced to $15,955, according to Cal/OSHA records. Both cases remain open, according to the agency.

Regardless of the agency's actions, Palo Alto administrators are moving ahead with various changes in the city's electric operation that they say will improve safety, coordination and reliability.

In 2020, the city hired a new safety officer, who came from PG&E and who went back to the company after about a year in the city. Given the competitive labor market, utilities staff asked the City Council last October to approve a salary increase for the utility safety officer, a position that a staff report describes as "safety and critical" and that "is directly impacting the 200+ employees who work each day to ensure the safe and reliable use of public utilities in the city of Palo Alto." Meanwhile, the city relied on an outside consultant, the firm ESCI Safety, Training & Consulting Services, to monitor work sites and ensure all safety measures were being met, he said.

After the council raised the maximum salary for the position from $138,528 to $154,586, the city moved quickly to hire a new safety officer, whose first day on the job was Jan. 24, Batchelor told the Weekly. He also noted in a Jan. 10 report to the council that the city is "exploring an option to supplement and expand safety-related services using consulting firms and to provide additional expertise in electrical utilities training and assessments."

"We're constantly looking at improvements in our safety policies," Batchelor said in an interview. "It goes well beyond this incident."

Power lines and utility poles by Covenant Presbyterian Church in Palo Alto on Jan. 31, 2022. Photo by Magali Gauthier.

What went into reporting this story

This investigative article into the death of a city of Palo Alto Utilities worker relied heavily on information that the Weekly obtained through numerous Public Records Act requests submitted both to the city of Palo Alto and to the state Department of Industrial Relations, which includes the Division of Occupational Safety and Health, also known as Cal/OSHA.

The documents obtained included the case file from the Cal/OSHA investigation, which was launched immediately after the Nov. 16, 2019, accident and concluded in May 2020, when the watchdog agency issued eight citations against the city.

The case file contained notes from Cal/OSHA interviews with crew members and other officials, and it was the primary document used by the Weekly to determine and describe what happened on the day of the accident.

The citations that Cal/OSHA issued against the city provided insight into what the agency viewed as the primary causes of the accident.

Obtaining information from city administrators about the fatal incident proved challenging. Reporter Gennady Sheyner asked for an interview with City Manager Ed Shikada and Utilities Director Dean Batchelor and was told they would not speak about the accident or past practices due to the city's pending appeal of the Cal/OSHA citations. That included comment on what the city's own investigation of the accident entailed and what it concluded. (They did, however, speak to current safety practices.)

To depict the actions the city took in response to the fatal incident, the Weekly cited public statements made by city officials, as well as emails obtained through a Public Records Act request.

To get insight into the city's position, the Weekly relied on its appeals of the Cal/OSHA citations as well on documents relating to the city's settlement with the family of Donatus Okhomina.

The Weekly also reached out to members of the Nov. 16, 2019 utilities crew and requested an interview with them, a request that the city denied.

Gennady Sheyner
 
Gennady Sheyner covers the City Hall beat in Palo Alto as well as regional politics, with a special focus on housing and transportation. Before joining the Palo Alto Weekly/PaloAltoOnline.com in 2008, he covered breaking news and local politics for the Waterbury Republican-American, a daily newspaper in Connecticut. Read more >>

Follow Palo Alto Online and the Palo Alto Weekly on Twitter @paloaltoweekly, Facebook and on Instagram @paloaltoonline for breaking news, local events, photos, videos and more.

Stay informed on important city government news. Sign up for our FREE daily Express newsletter.

After employee's death, Palo Alto fights charges of safety violations

City's appeal of Cal/OSHA citations drags on after 2019 accident that killed Donatus Okhomina

by / Palo Alto Weekly

Uploaded: Fri, Feb 4, 2022, 6:51 am

Donatus Okhomina Jr., was on his fifth day on the job as an electrical lineman for the city of Palo Alto Utilities when he went out on what would prove to be his final assignment.

Okhomina, 42, was part of a five-person crew that was scheduled to replace two transformers that were mounted on a pole and then move two high-voltage lines affixed to a crossarm closer in. Joining him for the work at a substation near the corner of Middlefield Road and East Meadow Drive were foreman George Hauper, a 12-year veteran of the Utilities Department, journeyman lineman Jose Rivera, electrical assistant Steven Melo and apprentice lineman Collin Williams.

The crew began work at about 6 a.m. on Nov. 16, 2019. The employees positioned their articulating boom lift — an Altec AM60 utility truck equipped with high-reach baskets — near the utility pole with the transformers, next to the Covenant Presbyterian Church. The plan was to de-energize the transformers, strip all the old equipment and then relocate the lines and install new equipment, according to documents from the California Division of Occupational Safety and Health, known as Cal/OSHA, that were obtained by the Palo Alto Weekly through a Public Records Act request.

There was nothing unusual about this assignment. Palo Alto's linemen work on electrically energized (or "live") lines, as well as on de-energized power lines, just about every day, according to the city. At times, their assignments involve other tasks such as installation of services, replacement of distribution equipment and installation and maintenance of underground power lines.

"What's really been tough about this situation is — it's routine work." Utilities Director Dean Batchelor later told the Utilities Advisory Commission. "We looked at averages that we had over the past four years, (and) we routinely do this work. ... About 42 times a year, we replace transformers that are up in the air."

The task on this day was split into two parts. The first called for two employees, working in separate buckets, to work on the de-energized equipment. The second part required two employees to get hoisted up in the same bucket so that they could work on the high-energy voltage lines. The buckets included sleeves containing tools such as insulated gloves, which the linemen would be required to use for the second, dangerous task.

Okhomina, wearing a hard hat, fleece hoodie and leather gloves, got into one of the two buckets, which was then lifted about 38 feet off the ground on the south side of the pole. About three feet beneath him was a bucket occupied by Rivera, who in 2019 had been with the Utilities Department for 12 years.

The rest of the crew was on the ground, according to documents from Cal/OSHA. Williams was preparing the new transformer for installation while Haupert and Melo were having a conversation, according to notes from the investigation.

Stationed in the lower bucket, Rivera proceeded to unbolt the old transformer on his side of the pole, reportedly with the understanding that Okhomina would hold the equipment from his side. Then things got out of sequence. At about 9:40 a.m., Okhomina called down to Williams to ask for a grip — an unusual request given that neither the tool nor Okhomina's leather gloves were insulated to protect against the high-voltage lines that, at that moment, were about 2 feet away from him.

No one, however, apparently gave it much thought at the time. Williams sent the grip through the hand line on Okhomina's bucket and proceeded with his prep work. Haupert was talking to Melo, according to Cal/OSHA, and did not hear Okhomina make the request.

Neither, evidently, did Rivera, who was preoccupied with his own task of removing the transformer. He told a Cal/OSHA investigator just after the accident that he didn't know why Okhomina made the request. Maybe, he surmised, Okhomina was "trying to stay ahead of the game."

"I wonder if he got ahead of himself," he said, according to Cal/OSHA notes.

None of the four crewmates saw Okhomina, holding a non-insulating grip in his leather glove, approach the two high-voltage electric lines of 4,160 volts. By the time Rivera looked up, it was too late. An electric arc formed between the two high-voltage lines, right where Okhomina was standing, instantly electrocuting him.

Melo told an investigator that he heard a scream and saw fire. Williams said he heard the arcing above him.

The crew reacted quickly. Williams got into the truck and lowered Okhomina's basket to the ground while Melo ran over to the Mitchell Park fire station to get help, according to Cal/OSHA documents. Though there were no fire engines at the station, Battalion Chief Steve Lindsey was there and he rushed to the accident site and tried to resuscitate Okhomina using CPR.

Police records show that paramedics were still trying to revive him at 10:34 a.m., though by that point, an officer at the scene reported the incident as a "possible fatality." His fleece KwikSafety hoodie was scorched through at the lower neck area and his leather glove was still stuck to his hand as he was rushed by an ambulance to Stanford Hospital.

Okhomina was pronounced dead at Stanford later that afternoon. Stanford's emergency room staff lined the exits as Okhomina's body was transferred out of the emergency room, according to City Manager Ed Shikada, and on-duty fire units assembled in salute as he was transported out of the hospital. He was the city's first utility employee to die in the line of duty in more than three decades.

The investigator's findings

What went wrong that day? That's a question that Palo Alto and Cal/OSHA, the state agency charged with enforcing and improving workplace safety, have been investigating and disputing for more than two years. And who is to blame is a question that remains open to this day.

The agency, which is part of the California Department of Industrial Relations, began its investigation immediately after the accident. By May 2020, the agency concluded the city had committed eight safety violations, some of which directly contributed to Okhomina's death. The city is appealing these citations — a process that is expected to take months, if not years, to resolve.

Cal/OSHA inspector Geraldine Tolentino found that the city had violated a long list of state laws, with devastating consequences. Her investigation included interviews with all of the employees involved in the incident as well as reviews of all equipment that was used during the operation and of all relevant city policies. What she found prompted Cal/OSHA to slap Palo Alto with eight citations, seven of which fall into the "serious" category — the most egregious class in the agency's taxonomy. The only citation that fell into the "general" category pertained to the city's failure to investigate an occupational injury — a charge that the city has formally challenged. When asked what the city's review of the incident entailed, Shikada declined to comment, citing advice from legal counsel and the city's pending appeal of the Cal/OSHA citations.

The other seven citations touch on everything from Okhomina's qualifications to perform the dangerous work to the failure of his colleagues to ensure his safety. Five of the citations carry the agency's maximum penalty of $18,000 each.

Specifically, Cal/OSHA concluded that the city had:

• Failed to ensure that only qualified workers work on high-voltage systems, as required by state law.

• Failed to ensure that a qualified worker is acting as an "observer" for the purpose of preventing an accident or rendering immediate assistance in the event of an accident, as required by the state's Code of Regulations.

• Failed to prevent employees from approaching a conductive object without an approved insulating handle as they got within the minimum distance of a conductive object, as established by an employer (in this case, 25 inches).

• Failed to make sure that each employee working near energized high-voltage lines is provided with and wears "suitable and flame resistant apparel."

• Failed to ensure that employees working on exposed energized conductors within reach of any part are covered with "suitable protective equipment." As a result of this failure, the citation states, an employee was electrocuted when the grip he was holding came within reach of the exposed high-voltage lines.

• Failed to ensure that precautions are taken to protect an employee from "accidental contact between the energized high voltage conductors."

• Failed to adopt provisions to "isolate and insulate the employees" during work in which conductors are being installed, relocated or removed and when there is "a possibility of the conductors accidentally contacting an energized high-voltage circuit or receiving a hazardous inducted voltage buildup."

The city is appealing all eight violations and claiming in most cases that Cal/OSHA's classification of these violations is incorrect and that its proposed penalties, which add up to $104,060, are unreasonable.

Furthermore, it is also asserting in its appeal that nearly all of the alleged violations cited by Cal/OSHA were the result of "independent employee action." The appeal does not specify whether the "employee" refers to Okhomina or one or more other utility employees.

Making the citations even more egregious, Cal/OSHA is also stating that some of the city's transgressions are part of a pattern that extends well beyond the November 2019 incident. Each Cal/OSHA citation is accompanied by a "supplemental worksheet" that provides more context for the inspector's decision to cite.

While Haupert reportedly told Tolentino that Okhomina was a qualified worker and that he had relied on Okhomina's past experience, he was unable to furnish any training records to substantiate this conclusion.

The foreman, according to Cal/OSHA, was confident that Okhomina "knew the job based on observing him on a similar job two days prior, although the job was not exactly the same."

The city did have reasons to feel confident about Okhomina's qualifications to do the job. According to his resume, Okhomina had worked in the electric utility industry since June 2000, when he began a five-year stint as a journeyman lineman with the International Brotherhood of Electrical Workers, Local 1245. He then moved on to the Sacramento Municipal Utilities District, which provides electrical services to the city of Sacramento, and held numerous positions there, including an electrician, a supervisor of cable splicers and a substation assets supervisor, which involved clearing transmission lines.

Most recently, he worked as an electrical supervisor at PG&E, where his responsibilities included training and development of work crews. What's more, his employee transcript from PG&E showed that he had completed numerous courses relevant to the job at hand, including ones focused on personal protective equipment and safety in electric operations.

But after city staff weren't able to furnish Okhomina's training records, Tolentino concluded that the city had failed to comply with a state law requiring employers to make sure only qualified electrical workers work on energized high-voltage systems. Had it followed the law, she noted in her report, Okhomina would not have been alone in the bucket.

Tolentino, whose investigation included interviews and correspondence with the crew at the scene, utilities management, Human Resources and a representative from Service Employees International Union, Local 521, which represents Okhomina and other linepersons, also regarded the lack of an observer as a "common practice" at the job site and notes that the employer had received complaints from other employees about this type of violation. Even though there had been three other workers in close proximity to Okhomina, none of them were functioning as observers, according to Cal/OSHA. The foreman, Haupert, reportedly did not see Okhomina request the grip because he was talking to Melo. And Rivera was busy unbolting the transformer while Williams was passing the grip on to Okhomina.

Tolentino also stated that not wearing proper protective equipment such as rubber gloves and flame-resistant apparel was common practice in Palo Alto. The violation, she noted, occurred while supervisors were in close proximity. If Okhomina had "worn flame-resistant apparel, (his) clothing would have not burned," her report states — and he would not have been electrocuted.

The inspection reports suggest that the city's failure to cover the high-voltage line in protective equipment and to ensure that employees maintain a safe, established minimum distance also fit a broader pattern. Neither the inspectors nor body camera footage from Palo Alto police officers who responded to the accident show any protective covering of the high-voltage lines, according to Cal/OSHA.

Finally, after Palo Alto had failed to furnish a report on its accident investigation to Cal/OSHA, the agency also classified this violation a "common practice at job site."

City officials have declined to discuss the Cal/OSHA investigation, citing advice from legal counsel and the city's ongoing appeal. But City Manager Ed Shikada and Utilities Director Dean Batchelor both said in a recent interview that safety is — and has been — the department's top concern. They pointed to numerous steps that the city has taken since the accident to improve safety, including strengthening rules for verifying the qualifications of new employees and instituting a new requirement that all utility employees working in the field wear city-issued clothing and personal protective equipment.

Shikada emphasized, however, that these actions do not in any way imply that the city shares Cal/OSHA's assessment that these factors caused the fatal accident. Rather, he said, they are part of the city's continuous push to improve safety.

"It's really important not to assume that the reinforcement we're describing is directly related to this incident," said Shikada, who served as a utility director before becoming city manager. "The fact that following a tragic incident we are reinforcing our practices is in no way intended to suggest that this is what we're communicating as causes in that case."

The emotional aftermath

Okhomina's tragic death notwithstanding, Batchelor said the city takes great pride in its safety record.

"We keep track of every day that we have no lost time to accidents," he said.

Prior to Nov. 16, 2019, the electric operation had tallied more than 1,600 consecutive days without lost time, he said. That day, the counter tallying the days was reset to zero.

Workplace fatalities in Palo Alto are thankfully rare. According to Cal/OSHA, three individuals have died in the line of duty since 2017. In May 2018, a landscape worker died while cutting a tree, when a branch that his rope was tied to fell into a woodchipper, dragging him along. Two months later, a worker died after he was crushed by a Bobcat skid steer with a sweeper that backed into him.

Serious accidents involving city workers are rarer still. So when the accident happened, it sent "a shock way through the entire city family," Shikada said. One of the city's priorities in the aftermath was to make sure that utilities employees had all the support they needed.

Batchelor said the city offered grief counseling to employees throughout the department. The city also offered additional time off to the employees who were part of the crew.

"Two took a few extra days off; two decided they wanted to come back to work right away, the following Monday," Batchelor said. "They were grieving in their own ways as well."

Shikada notified the entire workforce about the accident later in the afternoon, through a citywide email. The message did not provide details about what happened but rather informed employees that the person was injured and transferred to a local hospital, where he died from his injuries.

"This is a sad reminder of the risks involved in the critical functions that our Utilities employees perform daily," Shikada wrote.

Shikada did not disclose the name of the employee because the family had not yet been notified. He invited employees to take advantage of the counseling services provided in the Employee Assistance Program and assured them that the Human Resources department was standing by to assist them.

"In challenging moments like this it is truly a testament to the caring and commitment of our people that we pull together as one city family," Shikada wrote.

The following day, he followed up with another email informing staff that the employee involved in the workplace incident was Donatus Okhomina, whom Shikada described as a "veteran of the United States Air Force and a seasoned electrical lineman." He informed employees about the GoFundMe account that the Utilities Department opened to support Okhomina's family, his wife, Tammy, and his four daughters, aged between six and 17 at the time of the accident.

"I know we all have his family and loved ones in our thoughts and in our hearts," Shikada wrote.

More than 900 people donated to the account, which passed its $75,000 goal within days and, as of now, has received $105,000 in donations. The city's main firefighter union, International Association of Firefighters, Local 1319, contributed $2,000; SEIU, Local 521, the city's largest employee group and the one that represented Okhomina during his brief tenure in Palo Alto, donated $250.

Testimonials poured in for Okhomina, a Mississippi native who served in the United States Air Force before settling in Dixon with Tammy, a nurse in the local school district, and raising four daughters. His friends recalled his fondness for riding motorcycles, practicing jiu jitsu and spending time with his family.

Corey Sales, a colleague from Travis Air Force Base, recalled Okhomina installing chrome Dayton rims on his green truck and riding around the airport base. Another friend, Vic Baker, recalled the motorcycle trips they took together. Ernesto Veil called him "the kind of friend that leaves a mark on your heart and in your life."

Rumi Portillo, who contributed $1,250 on behalf of the city's executive leadership team, recalled seeing Okhomina at the orientation just days before the accident, which included taking a bus tour of the Stanford University campus and other local landmarks.

"Donatus talked with us about his family, his home in Dixon and his excitement for the new job," Portillo wrote. "Donatus stood out for his bright energy, humor and wonderful smile. We are deeply saddened and extend our sincerest condolences to the Okhomina family."

Batchelor also said that Okhomina was looking forward to working in Palo Alto, which he saw as more stable than his prior jobs.

"He was very excited about having the opportunity to be here," Batchelor told the utilities commission on Dec. 4.

City leaders also tried to offer support to the Okhomina family in other ways. Shikada, Portillo, Fire Chief Geo Blackshire, Batchelor and City Council member Alison Cormack all went to Dixon on Nov. 23 to pay their respects at Okhomina's funeral at Living Hope Church. The service included an honor guard from the city's Fire Department.

On Dec. 9, 2019, the council held a moment of silence for Okhomina and passed a resolution in his honor, calling him a "beloved father, friend and colleague who chose to serve his community in a very high risk but critical role as a lineperson with the city of Palo Alto."

Cormack recalled Okhomina's funeral, during which the family was presented with the U.S. flag.

"It was my honor to travel to Dixon for Mr. Okhomina's funeral, to pay my respect and our respects to his family, to hear each of his four daughters speak about what his presence was like in their lives and to see his family receive the folded flag that was a mark of respect for his service," she said.

The city places blame

Aside from internal communications and words of condolences immediately after the accident, Palo Alto officials have had little to say publicly over the past two years about the incident and what they're doing in response.

The Utilities Advisory Commission did not review the city's safety procedures or issue any recommendations. Council members did not hold any hearings to discuss what went wrong that day and how the city could improve safety. The deadly incident has not come up once during Shikada's public comments at council meetings, in informational reports or during council discussions.

Shikada said in an interview that the lack of hearings on safety protocols does not in any way suggest that the incident was not being taken seriously. Rather, it's a reflection of his view that the issues surrounding the accident are not a matter of setting new policies — which would involve the council and the utilities commission — but of improving internal operations.

"I really see this as operational issues," Shikada said. "These are areas we're focusing on on an ongoing basis."

The Weekly also contacted members of Okhomina's crew from the day of the incident. None of the employees responded, and the city declined the Weekly's request to talk to them. Shikada and Batchelor also declined to discuss whether anyone faced discipline after the accident, though they confirmed that all four employees who were part of Okhomina's crew are still working for the city.

But even though the city's public response has been relatively muted since December 2019, utilities administrators have taken a stronger stance in court filings and appeals, which largely diverted blame away from the city and pinned it on Okhomina himself.

This position is most evident in the city's response to a claim that Tammy Okhomina filed against the city in September 2020, alleging "serious and willful misconduct." The claim, which was submitted by her attorney, Mark Vickness, noted that Donatus Okhomina received no training from the city of Palo Alto and argues that the city "knew of a dangerous condition on the worksite and failed to provide a safe working environment as required by applicable law."

"These failures resulted in the electrocution, which caused Mr. Okhomina's death," Vickness wrote in the claim.

In a January 2021 filing to the Workers Compensation Appeals Board, an attorney representing the city responded to the claim by denying that Okhomina was electrocuted while performing the task that he was instructed to do: hoisting and lowering the second transformer off the pole. Instead, Okhomina "willfully deviated from that task and, for reasons unknown, moved his bucket into the contact area placing himself between the two phases of high voltage energized lines," the city alleged in a filing that was obtained by the Weekly.

"Applicant willfully violated the instructions he had received earlier that morning from the city's foreman, George 'Tom' Haupert, in doing so," wrote Adam Ambrozy, an attorney with the firm Lenahan, Slater, Pearse & Majernik LLP, in a response to Tammy Okhomina's claim.

The city claimed that Okhomina's "unilateral and substantial deviation from the task at hand resulted in the violations of most, if not all, of the safety orders" that were cited in Tammy Okhomina's petition.

Okhomina, the city maintained, "acted in such an unforeseeable way that Defendant had no way to anticipate such actions, especially since it was contrary to earlier instructions Applicant received that, if followed, would have prevented Applicant's death."

"Applicant's own serious and willful misconduct caused his death," Ambrozy wrote. "Applicant was instructed to act as a hoist to support and lower the transformer that was being taken off the pole by another city employee. Applicant substantially deviated from that task before the transformer was removed."

The city also claimed that Okhomina was instructed that any work near energized high-voltage lines would require rubber gloves and that such work would need to be performed with two men in the same bucket. He violated both sets of instructions, the city's response states, and as a result "willfully placed himself in the contact area and was electrocuted."

The city noted in its response that Okhomina had rubber gloves in his bucket, though he chose not to use them.

While the city also challenged Cal/OSHA's claim that Okhomina did not receive proper training, its response suggests that the city relied primarily on his past experience, rather than firsthand observations, as evidence that he could perform the task at hand. Okhomina had represented to the city that he "had been working in the field since 1996 and had extensive experience in this line of work," Ambrozy wrote.

The city's response to Tammy Okhomina's claim also takes issue with the Cal/OSHA investigation, which it claims was neither thorough nor "based on fact."

"In fact, Cal/OSHA's findings from its investigation make clear that it relied on speculation and conjecture to support several of its key findings," the city's response states, without specifying to which findings, speculations or conjectures it is referring.

City administrators have also made it clear to its own workforce that it disputes Cal/OSHA's findings about the various alleged violations that led to Okhomina's death. In July 2020, three months after Cal/OSHA issued its citations, Batchelor expressed the city's official position on the agency's findings in an email to utilities employees.

"The city does not agree with these allegations and we are working with the City Attorney, Human Resources and City Manager's Office on the city's appeal," Batchelor wrote.

He criticized Cal/OSHA's finding that the city's failure to properly train new employees contributed to the accident and the agency's conclusions that Palo Alto had failed to ensure that "only qualified electrical workers worked on energized conductors or equipment connected to energized high-voltage systems" and that an employees has "demonstrated proficiency in the work practices" before they are considered "properly instructed/trained."

"For this instance, we are convinced Donatus Okhomina met the qualifications and was appropriately skilled for the position," Batchelor wrote.

However, he said, "While the city is not in agreement with these allegations, we recognize there are ways to improve as an organization and we are re-examining existing safety practices and protocols. The city has already made and will continue to make internal improvements to a number of areas throughout the department."

The city is prioritizing three areas, Batchelor wrote: hiring and onboarding; training and workplace practices; and a new safety officer, a position that was filled at the time of the accident but that became vacant in December 2019, when the person who was filling it retired.

With respect to hiring, he wrote, "I have asked Human Resources to work with an industry expert to build in additional screening steps and to look more broadly at our hiring practices throughout the department."

Batchelor also wrote that he was working with the management team to update the department's training materials and had changed the reporting structure so that the new safety officer would report directly to him.

The city has changed numerous policies since the accident, Batchelor said in a Jan. 20 interview. In the past, when new employees would come on board, the city would sometimes allow them to wear their own fire-resistant clothing for the first few weeks, while the city worked to get their equipment properly sized. That is no longer allowed.

"Now, the new policy is that any person in the electrical organization that needs fire-resistant clothing, it's got to be issued by the city before they start to enter any type of situation with energized lines," Batchelor said.

The city also now asks new employees to provide certificates of training and other proof demonstrating their proficiency. This allows the city to follow-up with the training facility and to ask the employee during the interview process more specific questions about the safety protocols and procedures to which they are accustomed.

Unanswered questions

The city's response to Cal/OSHA's citations leaves open a litany of questions. Why didn't anyone on the crew stop Okhomina from deviating from normal procedure? Why was he provided with a non-insulated grip? Why was he allowed by his supervisor to be alone in the bucket if he was about to move live wires? Why wasn't he required to wear rubber gloves or other protective equipment? Did he receive any training at all from the city before he went up in the bucket? And do the violations cited by Cal/OSHA truly represent a pattern of laxity on the city's part or were they a one-time, tragic confluence of errors?

These are questions that the city had declined to discuss, pending the conclusion of Cal/OSHA's investigation.

But even as the city continues to deny that it committed any safety violations, it also took steps late last year to avoid liability for the accident. In mid-December, the city settled with Tammy Okhomina over her claim that the city engaged in serious and willful misconduct. Under the settlement, she and her four daughters will receive $580,512 for their benefits claims, which will be paid largely through the city's life insurance company, PSI. The settlement is costing the city, PSI, and the company Prism, which provides excess coverage, a total of $705,234, with $80,000 going to Okhomina's attorney, Vickness. (Neither Vickness nor Tammy Okhomina responded to numerous inquiries from the Weekly about the 2019 incident and the city's response.)

The total also includes a $30,000 payment to the Okhominas to prevent them from suing the city and $5,000 to Vickness. The settlement states that the city is settling a disputed claim and that its payment "shall not be construed as an admission of liability on the part of the city of Palo Alto."

Meanwhile, the Cal/OSHA process continues to drag on.

In May 2021, the agency informed the city that the criminal aspect of the case had been closed. While the agency had declined to provide any information relating to the criminal investigation, Cal/OSHA's decisions on criminal charges for workplace accidents typically hinge on whether the violation leading to the workplace fatality were done "willfully." For the agency, the term "willful," which was defined in the 1975 case United States v. Dye Construction, pertains to circumstances where an employer "having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement."

Palo Alto's violations, while serious, apparently fell short of that standard, according to Cal/OSHA. Ambrozy underscored in his response to Tammy Okhomina's claim that the agency did not find the city's violations to be "willful."

Meanwhile, the city's appeal of the civil citations remains ongoing and is unlikely to be resolved any time soon.

James Hinson, an attorney who specializes in Cal/OSHA appeals, told the Weekly that cases typically take between 12 and 15 months to get through the system. Palo Alto filed its appeal in July 2020, and the case has yet to get to an appeals board hearing. The two sides have held numerous status conference hearings and, as of early January, were preparing to schedule another one but had not settled on a date.

Hinson said an appeal by an employer typically goes to a Cal/OSHA Appeals Board judge. If the judge's decision is appealed by either the employer or the state, the case would go to the three-member Cal/OSHA Appeals Board for a final verdict.

Hinson suspected that because the Palo Alto case involves a fatal accident, Cal/OSHA is not likely to drop all or most of the citations. He noted that some of the citations issued by the state agency pertain to details that are difficult to dispute, such as the fact that Okhomina was not wearing rubber gloves.

"It's unlikely that they'll drop the charges because the facts are there," Hinson said.

But even if the appeals board is unlikely to drop all the citations, other recent cases involving workplace fatalities involving electrocution suggest that a settlement with a reduced fine is a strong possibility. The Palo Alto incident was one of 18 fatal electrocutions that occurred in California between March 10, 2017 and July 1, 2020, according to Cal/OSHA data. Two of them occurred in San Jose: one in February 2018, when a chainsaw operator for a landscaping company was trimming a 12-foot-long tree branch that made contact with a power line; and another in July 2018, when an employee of a remodeling company was electrocuted while connecting wiring as part of a kitchen renovation.

After investigating the two San Jose cases, the agency issued the landscaping employer, Rafael Munoz, a fine of $23,350, which it later reduced to $11,400 in penalties. The renovation company, Douglas Hsiung and Amy Wang-Hsiung, was initially fined $33,555. The penalty was later reduced to $15,955, according to Cal/OSHA records. Both cases remain open, according to the agency.

Regardless of the agency's actions, Palo Alto administrators are moving ahead with various changes in the city's electric operation that they say will improve safety, coordination and reliability.

In 2020, the city hired a new safety officer, who came from PG&E and who went back to the company after about a year in the city. Given the competitive labor market, utilities staff asked the City Council last October to approve a salary increase for the utility safety officer, a position that a staff report describes as "safety and critical" and that "is directly impacting the 200+ employees who work each day to ensure the safe and reliable use of public utilities in the city of Palo Alto." Meanwhile, the city relied on an outside consultant, the firm ESCI Safety, Training & Consulting Services, to monitor work sites and ensure all safety measures were being met, he said.

After the council raised the maximum salary for the position from $138,528 to $154,586, the city moved quickly to hire a new safety officer, whose first day on the job was Jan. 24, Batchelor told the Weekly. He also noted in a Jan. 10 report to the council that the city is "exploring an option to supplement and expand safety-related services using consulting firms and to provide additional expertise in electrical utilities training and assessments."

"We're constantly looking at improvements in our safety policies," Batchelor said in an interview. "It goes well beyond this incident."

What went into reporting this story

This investigative article into the death of a city of Palo Alto Utilities worker relied heavily on information that the Weekly obtained through numerous Public Records Act requests submitted both to the city of Palo Alto and to the state Department of Industrial Relations, which includes the Division of Occupational Safety and Health, also known as Cal/OSHA.

The documents obtained included the case file from the Cal/OSHA investigation, which was launched immediately after the Nov. 16, 2019, accident and concluded in May 2020, when the watchdog agency issued eight citations against the city.

The case file contained notes from Cal/OSHA interviews with crew members and other officials, and it was the primary document used by the Weekly to determine and describe what happened on the day of the accident.

The citations that Cal/OSHA issued against the city provided insight into what the agency viewed as the primary causes of the accident.

Obtaining information from city administrators about the fatal incident proved challenging. Reporter Gennady Sheyner asked for an interview with City Manager Ed Shikada and Utilities Director Dean Batchelor and was told they would not speak about the accident or past practices due to the city's pending appeal of the Cal/OSHA citations. That included comment on what the city's own investigation of the accident entailed and what it concluded. (They did, however, speak to current safety practices.)

To depict the actions the city took in response to the fatal incident, the Weekly cited public statements made by city officials, as well as emails obtained through a Public Records Act request.

To get insight into the city's position, the Weekly relied on its appeals of the Cal/OSHA citations as well on documents relating to the city's settlement with the family of Donatus Okhomina.

The Weekly also reached out to members of the Nov. 16, 2019 utilities crew and requested an interview with them, a request that the city denied.

Comments

Online Name
Registered user
Embarcadero Oaks/Leland
on Feb 4, 2022 at 12:01 pm
Online Name, Embarcadero Oaks/Leland
Registered user
on Feb 4, 2022 at 12:01 pm

Thanks for this detailed report and keep demanding responses from the city!

Enough with the shameful but predictable stonewalling from the City Manager and the City Attorney. More money for safety "consultants" who'll swear to the findings the client wants won't create good management practices or accountability from PAU.

Shameful the city paid the widow an additional sum to drop further lawsuits while the investigation continues. Even worse is the attorneys' accusation of the deceased of "willful" safety violations! Are they accusing him of willfully committing suicide to avoid their responsibility? Talk about blaming the victim!

The city's lack of transparency on this, on police accountability, the status of the refunds for the millions PAU still owes us etc etc. remains of grave concern. Some REAL oversight would be special.


Native to the BAY
Registered user
Old Palo Alto
on Feb 4, 2022 at 12:53 pm
Native to the BAY, Old Palo Alto
Registered user
on Feb 4, 2022 at 12:53 pm

Finally an in depth, investigative reported piece! This was an avoidable tragedy! Condolences to the family of Okhomina. The PA city again obfuscates responsibility. Behaving as if their new employee was a contract 1099 self employed worker.

GS please investigate & report the real story behind the lack of good, feasible, affordable housing market in town! This tragic story in the above shows me you know how.


Michele Dauber
Registered user
Barron Park
on Feb 6, 2022 at 8:01 am
Michele Dauber, Barron Park
Registered user
on Feb 6, 2022 at 8:01 am

From reading the story, the city was found to have violated numerous state worker safety rules, contributing to the death of this man. Ed Shikada would have residents and workers believe that everyone is lying or wrong or to blame except him, and that all the changes being supposedly made to safety protocols have nothing to do with this worker being killed, they are just making these changes for no reason. Meanwhile piles of taxpayer dollars are likely being expended on lawyers to fight OSHA and blame the victim. All while our utterly feckless City Council diddles Ed and itself, proclaiming Palo Alto to be the best place to live.


resident3
Registered user
Another Palo Alto neighborhood
on Feb 7, 2022 at 8:24 am
resident3, Another Palo Alto neighborhood
Registered user
on Feb 7, 2022 at 8:24 am

very sad loss

@online name
"Shameful the city paid the widow an additional sum to drop further lawsuits while the investigation continues."

It's baffling. and thanks Weekly for this in depth investigation.

It isn't clear though who decided to settle with the family while the investigation continues. Who decides in a situation like this to make it apparently only a legal strategy and who makes the call to conclude on a strategy to blame the victim?

Is it Council who made the decision to settle? Would that have been in a closed session?


Aletheia
Registered user
Greenmeadow
on Feb 7, 2022 at 6:07 pm
Aletheia, Greenmeadow
Registered user
on Feb 7, 2022 at 6:07 pm
felix
Registered user
Another Palo Alto neighborhood
on Feb 8, 2022 at 6:04 am
felix, Another Palo Alto neighborhood
Registered user
on Feb 8, 2022 at 6:04 am

This is a shameful response by our City.
Thank you Gennady - this is brilliant reporting.


Don't miss out on the discussion!
Sign up to be notified of new comments on this topic.

Post a comment

Sorry, but further commenting on this topic has been closed.