A state investigation of a fatal trench collapse concluded that Wilson developer Jamie Mackay violated county permits and failed to properly report employee wages.
The 119-page report by the Wyoming Department of Workforce Services Quality Assurance Manager and Investigator Chad Seidel includes interviews with current and past Fireside Resorts employees, text messages from Mackay and allegations of a Fireside employee destroying evidence after the men’s deaths.
The report doesn’t include an interview with Mackay, who did not return Seidel’s calls and emails, according to the report.
The News&Guide obtained the state report through a Wyoming Public Records Act request.
Juan Baez Sanchez, 42, and Victoriano Garcia Perez, 56, died Sept. 28, 2018, while working in a 12-foot-deep trench at a construction site at 120 S. Indian Springs Drive. The property is owned by Mackay.
“This investigation supports that Jamie Mackay was giving direction and control to both Juan and Victoriano to perform the excavation and trench work for the construction project at 120 S. Indian Springs,” the report states.
“Mackay failed to provide safety measures or appropriate training to the men for the work they were performing, a gross deviation from the standard of care that a reasonable person would exercise,” the report continues. “Mackay failed to perceive the substantial and unjustifiable risk that he exposed Victoriano and Juan to, for the excavation and trench work they were tasked to perform.”
Despite Seidel’s conclusion, Teton County Prosecuting Attorney Erin Weisman decided in July to not pursue criminal charges against Mackay, citing a lack of evidence.
“At this time, I have completed my review of all of the evidence in the above-mentioned case, as set forth in the investigative reports from the sheriff’s office and the Department of Workforce Services, and I do not find sufficient evidence to support the filing of criminal charges against Jamie Mackay,” Weisman wrote in a letter to the Teton County Sheriff’s Office and Wyoming Department of Workforce Services.
Representatives for the men are suing Mackay for wrongful death. The civil case is slowly making its way through the courts.
“Victor is believed to have been in the trench assembling a French drain designed to drain ground water away from the home that was under construction on the property,” Seidel wrote in the report. “The men were buried in a 12-feet to 15-feet-deep trench, absent all required safety precautions.”
Mackay had some of the required permits, but the excavation work being performed that day was without a required Teton County Grading and Erosion Control permit, the report stated.
“During my review of this permit application, I spoke with Jamie Mackay and informed him that trenching in a new waterline from his well would not be allowed because he is required to connect to the HOA’s community water system,” Ted Van Holland of the Teton County Engineering Department told Teton County Sheriff’s Detective Dave Hodges in an email. “He told me he understood. I marked all the official sets of the drawings with red pen deleting the water line and issued the permit. During a subsequent site visit I found that the well water line had been installed, contrary to my explicit conditions of approval.”
Seidel also interviewed a former Fireside employee who was working the day of the fatal incident. She said she called the Occupational Safety and Health Administration after seeing a manager shredding time cards.
“[Employee] told me that following the trench accident, Brandy Larson had advised [her] to keep quiet about it,” Seidel wrote. “[Employee] said when Larson approached her, Larson said, ‘This is a small town, you know, it’s best that, you know, you not talk about this incident.’”
Larson reportedly followed up with the employee, saying the hush request was out of respect for the men and their families.
“[Employee] also told me after the fatalities, Brandy ‘was shredding a bunch of documents.’ [Employee] saw that as a red flag,” Seidel said.
In Seidel’s interview with Larson, she denied shredding time cards.
“Investigation finds Victoriano was an unreported employee of another of Mackay’s business, Fireside RV Resort, where Victoriano has worked for approximately 10 years,” Seidel’s report states. “Fireside RV Resort failed to fully report employee earnings which resulted in a reduction of the Workers’ Compensation and Unemployment Insurance employer premiums due, a felony violation of W.S. 27-14-510 (b) (ii). Jamie Mackay also failed to report the domestic wages he paid to Juan Baez-Sanchez.”
About six months after the fatalities, Wyoming’s OSHA penalized Fireside Resort for five “serious” violations.
“No support systems, shield systems or other protective systems were being used,” an OSHA citation read.
OSHA also cited Mackay for a lack of oversight.
Seidel’s investigation was separate from OSHA’s.