Deposition: Governor's chief of staff didn't read coal ash testimony before accusing toxicologist of lying

New information on coal ash testimony
Thomas Stith
Thomas Stith

RALEIGH, NC (WBTV) - Governor Pat McCrory's chief of staff, Thomas Stith, did not read the transcript of state toxicologist Dr. Ken Rudo before holding a press conference in which Stith accused Rudo of lying under oath.

Rudo is a state toxicologist for the Department of Health and Human Services at the center of the ongoing controversy surrounding the state's handling of coal ash at facilities owned by Duke Energy.

At a deposition in July, Rudo testified that he was called to a meeting at the governor's office at the end of March to discuss language in a health risk advisory being sent to residents who live near Duke coal ash facilities.

The revelation was made during testimony Smith gave under oath during a deposition about his claims Rudo lied under oath. A transcript of Stith's deposition was made public as part of a separate court filing Tuesday asking a judge to compel Stith to answer additional questions about the relationship between the Governor's Office, certain state staff and Duke Energy.

Rudo's testimony

In his deposition, Rudo testified that political appointees at the North Carolina Department of Environmental Quality, which was the Department of Environment and Natural Resources at the time, and staff from McCrory's office pushed to soften the language in the letters advising residents to not drink their well water.

At issue was the level of hexavalent chromium, a toxic chemical known to be present in coal ash, in the groundwater surrounding coal ash facilities.

RELATED: Click here to read publicly available details of Rudo's testimony

Ultimately, a batch of 118 'do not drink' letters was sent to residents who live near coal ash facilities in the summer of 2015. A second batch of letters was sent nearly a year later advising residents that the water was, actually, safe to drink.

In an interview following the 'OK to drink' letters, top regulators at NCDHHS and NCDEQ told On Your Side Investigates the water was safe to drink because it contained the same levels of hexavalent chromium as other public drinking water systems across the state.

A review of publicly available Hexavalent Chromium data for public drinking water systems across the state shows the claim by state regulators is not true.

In his July deposition, Rudo testified that he was called to a meeting at the governor's office by his supervisor at NCDHHS, Dr. Megan Davies, to discuss the language in the 'do not drink' letters.

"So I went down to that big old building in downtown Raleigh, and the Governor wasn't there," Rudo said of the meeting. "He participated for a couple of minutes by phone."

Rudo said other members of the McCrory Administration were present at the meeting, though, including Communications Director Josh Ellis, his assistant and the NCDHHS Communications Director Kendra Gerlach.

Governor's Office responds to Rudo's claim

Following the release of a portion of the transcript outlining Rudo's deposition testimony, McCrory's chief of staff, Thomas Stith, released a statement accusing Rudo of lying under oath.

"We don't know why Ken Rudo lied under oath, but the governor absolutely did not take part in or request this call or meeting as he suggests," Stith said in a statement released late in the afternoon of August 2, 2016.

Later that night, after 10:00 p.m., Stith held a press conference at the Capitol in which he reiterated that Rudo lied under oath when he testified that McCrory called him to a meeting at his office and that the Governor participated by phone.

Kendra Gerlach, the NCDHHS Communications Director, also issued a statement on the same day further questioning Rudo's testimony.

"I was at that meeting," Gerlach's statement said. "The Governor did not participate in that meeting, nor did he summon Ken Rudo."

New details revealed in Stith's deposition

Attorneys at the Southern Environmental Law Center, who represent environmental groups in a series of lawsuits challenging Duke Energy's and the McCrory Administration's handling of coal ash, asked Stith questions about his claim that Rudo lied under oath during a deposition in September.

During the deposition, Stith testified that he did not read a transcript of Rudo's testimony prior to accusing him of perjury.

Instead, Stith testified, he relied on media accounts of Rudo's deposition testimony.

"I probably saw printed versions in the press that purported to be from the actual document. So I am assuming it was the document," Stith said.

When pressed to clarify by an attorney taking Stith's deposition, Stith said he had read quotes of Rudo's transcript published in news article.

Later in the deposition, Stith said he had seen "parts of (Rudo's) deposition" but did not clarify if he was referring to quotes or portions of a transcript of Rudo's deposition published as part of a news story.

Stith testified that, in addition to reading media accounts of what Rudo said in his deposition, he also spoke with McCrory's communications director, Josh Ellis, who did participate in the March meeting that was the subject of Rudo's disputed testimony.

Stith said he also spoke with McCrory before issuing the statement accusing Rudo of lying under oath.

Stith's conversation with McCrory was brief, he testified, with McCrory only saying "use your judgement. Do the right thing."

During Stith's deposition, he also confirmed that Ellis took a phone call from McCrory during the March meeting while Rudo was in the room.

The Governor's Office has previously disputed Rudo's claim that McCrory participated in the meeting by phone. Stith reiterated that McCrory didn't participate in the meeting by calling Ellis, focusing on the definition of the word 'participate.'

"When Dr. Rudo says 'he participated,' he is saying the Governor participated. I don't know -- we could get a definition of 'participate,' but -- you know, what is your definition of "participate"? You -- you are actively a part of an event, engaged in that event, you know," Stith said. "I don't want to be a Webster's Dictionary, but when – 'participate' is what we are doing now, or having input into -- and talking, yes."

Stith testified that Ellis took a call from McCrory during the meeting with Rudo, greeted the Governor while in the room and then walked out.

Ellis provided the following statement in response to a request for comment for this story:

"Despite the fact that our office has no relevancy to this legal case, we've done more than enough to accommodate the SELC's request by voluntarily allowing the deposition of two employees and producing hundreds of pages of documents.  We're not going to subject state employees to what we view as an abuse of the legal process - especially when it is increasingly clear that the goal for the SELC is publicity, not fact finding. More importantly, the SELC is attempting to distract attention from the fact that other parties involved have resoundingly rejected Ken Rudo's statements under oath."

A spokeswoman for the Southern Environmental Law Center declined to comment.

Not all questions answered

Stith's deposition transcript was made public Tuesday as part of a motion filed by the SELC seeking to have a judge order Stith to answer additional questions.

Attorneys for the McCrory Administration instructed Stith to not answer questions outside the scope of his comments regarding Rudo's deposition testimony.

The SELC's motion to compel accuses attorneys for McCrory of violating the law by instructing Stith to not answer questions without having a specific order from a judge to do so.

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