Bart Riley loads his delivery van. The cart holding his products was once deemed unacceptable by Jeffrey Legg, a supervisor with the Food Safety and Inspection Service, but Riley discovered that it violated no federal regulations. Photo credit: Walter Hinick, The Montana Standard |
Lack of due process based on arbitrary enforcement of the rules (or non-rules, as seems to be the case here) is a long-standing problem across the country and may be the number one issue facing our members today. If you’ve had a similar experience, please contact us. Also, consider membership with us, the Farm-to-Consumer Legal Defense Fund; we help our members with issues like those outlined in this article, and many more.
The below was originally published by The Montana Standard and has been reposted and edited here with permission; this is the first of a two-part series.
As a boy growing up in Butte, Bart Riley loved spending time at the family business, Riley Meats, on West Park Street. Young Bart and his siblings would help out cleaning the shop after his father was done cutting meat for the day.
“I must have been good at it, because more and more the task fell to me,” he remembers with a grin. “I enjoyed it.”
He still enjoys it. As the third-generation proprietor of Riley Meats—his grandfather started the business in 1948—he now gets to clean up after himself, scouring every inch of his small wholesale and retail meat-cutting operation with steam sprayed at 225 degrees. Walk in any day—as federal and county inspectors have attested—and the little shop, still at 134 W. Park Street, is immaculate.
But the consistent praise from inspectors has not prevented the past 12 years from being a federal regulatory nightmare for Bart Riley and his family.
A Shocking Visit
On Aug. 3, 2005, Dr. Jeffrey Legg walked into Riley Meats.
The Food Safety and Inspection Service (FSIS), the branch of the U.S. Department of Agriculture charged with ensuring the safety of food in the marketplace, had by that time been inspecting Bart’s business for 36 years. On a daily basis, an inspector would be present as the successive Rileys cut steaks, ground hamburger, waited on the occasional retail customer, and in recent years made sausage with a top-secret concoction of spices Bart adds to his ground pork.
Riley does not slaughter; he is a processor, a purveyor of fine meat mostly to wholesale customers—restaurants spread across several states—and also to walk-in retail customers.
It is the quintessential family business, big enough to provide a good living to Bart Riley and his family, not big enough to require multiple employees and all the discomforts—and compromises—that come with scaling a business upward.
On this day almost exactly a dozen years ago, Riley’s then-regular federal inspector, Rick Toot, introduced him to Legg. Legg, a veterinarian by training, was Toot’s new boss, the new front-line supervisor for the Montana circuit. His credentials were impressive: A former front-line supervisor in North Dakota, he had then been promoted to regional headquarters in Minneapolis as a deputy district manager.
Now, he had apparently decided to head back into the field, supervising the inspection of dozens of federally inspected plants in the Billings circuit, covering Montana and part of Wyoming.
Riley had no reason to be worried. He had a very good professional relationship with FSIS, currently in the person of Toot, who remembers, “Riley’s Meats was consistently free of issues. His plant—I mean it’s an old building, but it’s immaculate. The guy takes care of that plant.”
As Riley gave him a tour of his modest operation, Legg could not have been more polite. But after the tour came the shock.
He told Riley he couldn’t use the wooden pallets his products were stacked on in his coolers. “You need to change them out” to plastic, he said. The basement—even though no business was done there, no product stored there—needed to be refurbished with new concrete. Back upstairs, the walls that Bart had covered with easy-to-clean galvanized metal needed to be re-covered with glass board. The carts that Riley used to transport product back and forth from cooler to street were fashioned of galvanized metal-clad wood. Unacceptable, he was told. The carts must be stainless steel. And, Legg said, you have to build an office for the inspectors, at least 8’x10′, with a locking door and a source of heat and a desk and file cabinet.
The list went on and on, and as it did, Riley became more and more distressed. The calculator in his head—the one every small businessman has—was clicking away furiously, and the numbers were getting scary-big. Approaching six figures.
Another shock: Legg told Riley he didn’t see how he could continue to process wild game during hunting season and retain his federal inspection. Riley explained that the processing of wild game was done completely separately, after his regular working hours, and the plant was rigorously cleaned afterward. Legg expressed doubt that would be good enough under his regimen.
Toot took Legg into several other plants during his get-to-know-the-circuit tour. At each place, Legg was super-polite but ended the visit with a long to-do list.
“He told them all, ‘I’m available to you 365 days a year, seven days a week,'” Toot remembers. “Here’s this guy in a suit and tie and pretty shoes, trying to convince them instantly he’s one of them. I had half a dozen plant managers pull me aside after those initial visits and say, ‘He’s trying to close my plant.'”
In the weeks following Legg’s visit, Riley wrestled with what to do. Reluctantly, he built the inspector’s office. He did the basement concrete work. And he replaced the pallets in one of his coolers, all in all spending around $10,000.
But then one day he noticed that he was getting Daily’s bacon delivered from Missoula on wooden pallets, and he knew the large Daily’s Premium Meats plant was federally inspected.
So Riley took a closer look at FSIS regulations. And he discovered that nowhere in the federal rules did it specify that wooden pallets were unacceptable.
Now more than a little irritated, Riley checked further. Ultimately, he discovered that none of the work Legg had told him he needed to do was based on federal regulations—not the wall coverings, not the concrete, not the steel carts, none of it.
Further, he would discover with more research that Jeffrey Legg was known within the agency for making arbitrary pronouncements that were not rooted in the rules.
Riley was told by an inspector who had worked for Legg in North Dakota that inspectors and plant operators there had come up with a name for the orders from Legg that were nowhere in the federal regulations.
“They called them ‘Legg regs’,” Riley said. Soon, Montana owners would be using the same phrase.
One night about 10 p.m., Riley was reading the federal regulations.
He found that slaughter plants are required to provide an office for inspectors. Processing plants, like Riley’s plant, are not, the regulations specified. A desk must be provided for the inspector. That’s all.
“I was wild,” Riley remembered. “I loaded up a chainsaw, a crowbar, and a sledgehammer, and I went to the plant and tore down that office. I had it gone by midnight.”
“I cleaned everything up and left the piece of the door with the padlock on it on the inspector’s desk.”
“The next day, nobody said a word. And nobody ever said anything about it. They knew that I knew I’d been lied to.”
Ranchland Episode Irritates Governor
Just a day after Legg’s visit to Riley Meats, he issued an order closing down Ranchland Packing in Butte for a supposed rodent issue in the plant’s offices—not near its production areas. This greatly irritated at least one influential Montanan—then-Gov. Brian Schweitzer.
FSIS impounded some two hundred carcasses that were hanging in the Ranchland plant when the agency closed it. One of them, a prize hog, belonged to none other than the governor, who had purchased it from its young owner at a 4-H auction. To make matters worse, Ranchland took the necessary steps to remedy the issue immediately, but Legg had gone on a fishing trip and wasn’t immediately reachable to authorize the reopening of the plant.
Within days, the plant was reopened, carcasses released.
But soon, federally inspected meat businesses in Montana were in something of an uproar.
Other facilities, after hearing of Riley’s pushback, began complaining about Legg too. Plant owners heard through the grapevine that Legg had been sent to Montana by FSIS brass to get as many small operations off of federal inspection as possible.
And indeed some businesses, faced with long to-do lists from Legg, did make the decision to drop federal inspection and begin to be inspected by the State of Montana—generally considered less stringent.
For Riley’s operation, though, federal inspection is critical to his business model. Riley sells to restaurants and other clients across state lines—which can’t be done without federal inspection.
To combat the uproar in Montana, the Food Safety and Inspection Service decided to set up a series of “listening sessions” to hear and address small and very small plant operators’ concerns.
The FSIS officials endured an earful.
Repeatedly, the FSIS bureaucrats from headquarters assured plant operators that no, the requirements enumerated in the “Legg regs” were not real. Plants don’t have to change out wooden pallets. Plant operators don’t have to cover every surface with glass board. All equipment doesn’t have to be stainless steel. Only areas of the building directly involved in operations or product storage were subject to inspection, not basements or other floors that were not part of the operation. And plants didn’t have to take a suspension from federal inspection in order to process wild game.
Legg, answering a direct question from Riley, admitted that “we have no problem with wood pallets” as long as they are in good repair, leaving Riley stunned at the contradiction from Legg’s statement at his plant.
Toot bit his tongue. He had accompanied Legg to several plants in which Legg had said wooden pallets were unacceptable. Even more, he had been ordered by Legg to write NRs—”noncompliance records”—citing plants for using wooden pallets. In an affidavit Toot would sign in January 2014, he wrote, “Dr. Legg…told me that anyone who did not write NRs” on the issue would be gone. “He said that about three times. I took that as he was saying we would be fired if we did not write NRs on wooden pallets.”
At the listening sessions, in the presence of his supervisors, Legg did not deny that he had ordered plants to remove the pallets. But later, when his conduct was investigated, he would officially deny he had ever said wooden pallets were unacceptable.
The second “listening session,” in Helena, got hijacked by the governor. Schweitzer showed up unannounced, with a video crew, and harangued the FSIS officials for half an hour straight, scolding them for overzealous actions against small Montana operators even as cattle from Canada were able to enter the country uninspected, despite the concern of BSE (mad cow disease).
The final session, in Butte, ended early amidst acrimonious questions about the Ranchland closure. The sessions’ message to plant owners was clearly intended to reassure: FSIS was not trying to drop them from federal inspection, and they would not be penalized for failing to meet requirements that weren’t in the rule book.
But for Bart Riley, the listening sessions solved nothing. And his problems with the FSIS’s new front-line supervisor were about to get much worse.
A Blizzard Of Citations
Rick Toot, the inspector who introduced Legg to Riley, remembers that Legg was clearly angered at Bart Riley’s pushback. He told Toot and others that Riley Meats “needed to go away.”
Toot and other inspectors were told to write NRs—a lot of NRs—on Riley.
“One thing that has to be made perfectly clear,” Toot says, “is that Dr. Legg never used the word ‘quota’ in describing how many NRs he wanted. And he’s a master of deniability. He’d never admit there was a quota.
“He won’t put anything in writing like that,” he added. “Usually, when he made those statements, there were no witnesses.
“But one day down at Ranchland, his ego must have been running really high, and he had several of us there, inspectors and veterinarians, and he had us gathered in a circle, and he was kind of in his pulpit. And he told us flat out, ‘I want one NR per day in this plant.’ Now if that’s not a quota, I don’t know what one is.”
Toot said he asked Legg one day, “Dr. Legg, correct me if I’m wrong, but we’ve been at this under your supervision for a year, and we’ve been writing all these NRs, and the plants have been correcting those issues. So theoretically, shouldn’t the number of NRs be going down?”
“He told me, ‘Absolutely not,'” Toot remembers. “He said we had to keep those NR numbers up.”
For Bart Riley, the blizzard of NRs after the “listening sessions” became an enormous distraction. And they also represented a very real threat to his business—financially and logistically. Paperwork meant time away from cutting meat. And while most complaints were very trivial—pinhole-sized rust spots on a grocery cart used to ferry bagged product into the coolers, easily addressed by a two-second spray of steel coating—some were more aggravating.
When, at Legg’s directive, Riley was given an NR for using wooden pallets, his rejoinder on the federal form is telling:
“I am appealing this NR because, in my view, it constitutes harassment and discriminatory treatment in retaliation for my speaking out at the FSIS listening sessions in September. Contrary to the public statements made by Bill Smith, Deputy Administrator, Office of Field Operations, the issue of wooden pallets remains at the forefront of the harassment issues I am experiencing in my plant.”
He added, “I believe it is imperative the agency understands that the pallets in question arrived in my facility bearing product I purchased from Daily’s Bacon in Missoula. Based on my conversations with Daily’s, the…use of wooden pallets identical to the ones in use at my facility is not an issue at their plant. This information leaves me in a quandary; either there is a dual standard of enforcement in Montana or my plant is being subjected to intention(al) harassment, possibly of a retaliatory nature.”
“Please advise me, in writing, how the pallets in question are a violation in my plant but not in Daily’s.”
Gov. Schweitzer’s office also fired off a letter to FSIS district headquarters. Within days, the NR was rescinded.
A few weeks later, Riley received an NR that left him all but speechless. The citation questioned whether the plant had a potable water supply. When Riley responded that the plant had been hooked up to city water for many decades, he was asked for a letter certifying that the city’s water supply was drinkable.
That NR, too, was rescinded.
The paper kept coming. Pinhole rust on carts. Rust on the bottom of hand trucks that were being stored but not currently used. Riley challenged Legg directly on that one; Legg waved a hand and said, “Appeal it, it’ll disappear.”
As Riley spent more and more time in his office writing NR appeals and checking on the status of the citations, his frustration mounted.
An NR written in May 2006 about a spot of “biofilm” on his freezer wall became the last straw for Riley. He couldn’t see anything the matter with his freezer wall. Resignedly, he appealed the NR.
Then, the inspector presented him with a revision. Now the “biofilm” was “an oily smear with adherent dust and unidentified debris intermingled with frozen concentrate.” And two boxes of product were tagged “retain” by the inspector because concentrate had dripped onto the cardboard (nowhere near the product, which was sealed in plastic).
It turned out that the inspector had reached out to the FSIS Technical Service Center to work on the wording of the NR. Riley, who thought the NR had been changed to make it sound more serious, questioned how people at the Omaha center could have a better idea of what was on his freezer wall than the inspector in Butte.
After his appeal, the product was released for shipment. The NR, though not rescinded, was deleted from the system, apparently by Legg, which would be a violation of FSIS policy.
Riley was out of patience. He filed an official complaint, alleging multiple instances of willful harassment by Legg and other FSIS personnel.
The complaint was investigated. Riley was interviewed. But for the next two years plus, he heard nothing about a resolution.
Quotas By Any Other Name
The issue of “quotas” of NRs would not die.
FSIS administrator Al Almanza was asked in June of 2008 in an interview on an industry blog, meatingplace.com, whether inspectors were given quotas of NRs.
“I’d say that’s false,” Almanza replied. “A more accurate description is that whenever a plant has zero NRs, you would assume that it would be a perfect plant. We have to document deficiencies and have their preventative and corrective measures documented. I’m not aware of any quotas…we are not going to order or direct any of our inspectors on any number of NRs to be documented on a day, a month, et cetera.”
In Montana, the situation on the ground felt much different, particularly in plants that had incurred Legg’s displeasure.
“He had quotas, definitely, particularly for the plants he didn’t like,” said another inspector who requested that his name not be used because he still works for FSIS. “And he didn’t like Bart Riley.”
Riley said yet another inspector told him that Legg had passed down orders through an intermediary that all inspectors needed to write 10 NRs in every plant each quarter. When the inspector questioned his supervisor about whether that was a quota, he was told that Legg said it wasn’t a quota, but he did not see how every plant wouldn’t have 10 NRs per quarter.
Just six weeks before Almanza’s denial, Legg forwarded an email to his inspectors from Roger Kubera, then an analyst with the Minneapolis district, covering Montana.
“Not to be forwarded,” the email started. It went on to say: “Perfect plants ‘O’ NRs??? 1-NR maybe if they worked one day. 2-NR’s possibly in certain cases. 3 or more is the most likely.”
Interviews, Questions Refused
The Montana Standard contacted FSIS and asked to interview Jeffrey Legg as well as his current supervisor in the district office, which has been moved from Minneapolis to Denver, Anna Gallegos; Bill Smith, head of the Office of Field Operations for FSIS; and the FSIS administrator, Al Almanza. Over a period of months, all interview requests were refused. The Standard then provided a comprehensive list of questions to be answered by Legg, Gallegos, Smith, and Almanza. The agency declined to provide answers to the questions. (Almanza retired shortly after both the interview request and the questions were rejected.)
In response to the interview requests and specific questions, the agency instead issued a one-paragraph statement:
“FSIS makes no exceptions when it comes to the safety of our food supply and protecting the health of American families. Our inspectors take appropriate regulatory actions to ensure that the nation’s food is safe and wholesome, regardless of the size of the establishment. It is our policy and responsibility to investigate complaints and inquiries thoroughly, to take appropriate action on the basis of the findings, and to ensure that any disagreements between plant managers and FSIS inspection program personnel are reviewed and resolved.”
A Freedom of Information Act request for documents related to the case was partially filled and partially rejected. Specific documents requested, including the agency’s investigative reports that followed Riley’s complaints, were not provided.
‘No Further Action’
On Oct. 1, 2008, some two years and four months after Bart Riley first filed a complaint with FSIS concerning the actions of Jeffrey Legg, he received a letter from Judith Riggins, then FSIS’s deputy assistant administrator for the Office of Field Operations.
“With regard to the 11 allegations regarding willful harassment, (FSIS) concluded that three allegations were not substantiated, five allegations were substantiated and three allegations were inconclusive.”
She added, “With regard to the eight allegations regarding…willful or intentional acts to intimidate or otherwise coerce or torment you, (FSIS) concluded that three allegations were not substantiated, one allegation was substantiated, two allegations were partly substantiated and two allegations were inconclusive.”
She concluded, “While I appreciate the concerns mentioned in your complaint, it is my finding that each of the issues mentioned have been addressed in an acceptable manner. Based on the results of my findings, I plan to take no further action on your complaint.”
Riley was stunned. The agency was admitting that at least six allegations of willful harassment and intentional acts to intimidate or torment Riley were true, and seven more were either partially confirmed or possibly true. And in the same breath, the agency was concluding no action was needed.
Over the next decade, Riley would file at least four more formal complaints against Legg. This belated response to the first complaint would be the most favorable one he would ever receive. At least two complaints received no response at all.
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