Malfeasance is the act of intentionally doing something legally or morally wrong, which one had no right to do. It always involves dishonesty, illegality or knowingly exceeding authority for improper reasons.

For example, you are the manager of a chemical company faced with a problem: A chemical tank needs to be cleaned out and the cost to have it done is nearly $500,000. The decision is yours and you decide to have your employees clean the tank and dispose of the waste for minimal cost on a Saturday night rather than hire an expensive cleaning subcontractor. Although you know the chemicals are hazardous, you're willing to take the risk based on the savings; which in the end will save the company money and elevate your status in the eyes of your superiors.

Saturday night arrives and your employees begin cleaning the tank. In a matter of hours, the chemicals overcome your employees. Rescue and aid units are called in to treat the employees. In the end, people died. Some were permanently disabled.

No matter how small or large a company, people in authority are legally and morally responsible for safety.

Damage control

I recently interviewed Kent Straszewski, safety director for KHS&S Contractors. KHS&S is one of the nation's largest specialty and theme contractors. On a personal note, I have to mention that KHS&S and I are performing venture work here in Washington State and is how I came to meet Kent.

Kent has 25 years of safety experience. He has also earned a CHCM certification, which makes him a certified hazard control manager. At this level of certification, Kent is considered to have a comprehensive full practice, master's level safety certification. You will most likely not meet another safety director with this level of certification.

Kent described a safety plan as an illness and injury prevention program. A safety plan is designed to identify procedures for completing tasks with the least amount of risk.

The reasons for having a company safety plan, according to Kent, are diverse, yet in the end everyone, including the community, benefits from a company safety plan.

Accordingly, the reasons to have a safety plan are:

• Federal law requirement

• State law requirement (some states adopt the OSHA plan)

• Controls costs

• Safety becomes personal

The U.S. Dept. of Labor created OSHA to ensure the safety and health of America's workers by setting and enforcing standards, providing training, outreach and education, establishing partnerships and encouraging continual improvement in workplace safety and health. OSHA's Web site is and is very comprehensive.

In my opinion, the United States government wisely concluded injured workers do not benefit anyone while off work. One doesn't have to be a rocket scientist to understand the horrendous impact injured workers have on our state and federal coffers. As well, and most importantly, is the impact to the injured worker's family. No matter how hard one tries to ignore or rationalize an injured worker issue, one must understand the impact a time-loss injury has on the injured worker's spouse, children and other family members.

If the owner-manager of a small business were seriously injured and off work, consider what might happen to the business. In many cases, an injured owner issue may result in a business failure. Owners and workers suffer the consequences of time loss injuries equally in different ways. Both will need assistance either in the form of disability checks, food stamps, or support from family, friends, churches or other community service groups. Health and injury issues have the unique ability to equalize the economic, emotional and spiritual differences between people.

Gut wrenching

Do most take safety as seriously as they should? Kent has given me a reality gut check to the subject of safety. It is personal and it can be gut wrenching. Kent has seen a lot in his 25-year involvement in the safety industry. There are some things he can't talk about with out his throat tightening.

As an owner or manager, could you or would you attend the funeral of one of your employees killed on the job? My hands are sweating as I write these words. Thank God, I've never been in this situation, but all of us know construction is dangerous and that accidents do happen.

For an owner, manager or safety director, there is an emotional difference between an accident and a willful safety violation resulting in death or injury. The problem with accidents as compared to willful violations resulting in injury is how the family of the injured worker, as well as the governmental authority, brought in to investigate the case looks at the responsible owner or manager.

Consider a person who has been assaulted in some way. A defense lawyer in this type of case may try to prove that the victim asked for it or consented, or that possibly his client was simply defending his or her self.

For some reason, finding a person or thing to blame is very important in this day and age. The facts should be the most important, and it should be determined without shredding the character or emotions of another person. However, in the world of law, shredding another person seems to be acceptable as long as the goal is reached. The goal is usually a monetary settlement of some type and at anyone's expense.

If a manager or owner steps back and really ponders safety and the impact a serious injury or fatality has upon the company, the injured worker and his family, as well as the financial and personal side effects upon management, then safety will take precedence over profit or any other program or procedure in his or her business.

More personal than ever

If an owner knowingly, intentionally directs a person under his authority to do something that he knows will result in death or injury, he is most likely going to jail for murder, manslaughter or assault.

According to Kent, an OHSA citation can be personally used against an owner in a civil or criminal court. Once a serious accident occurs, it's similar to having a cop drive up and slap handcuffs on your wrists, while pushing your head down as you get in the back seat of the cop car. You're out of control and you're obviously not in the drivers seat anymore. You now have to rely on the professionals you hire. Simply said, you're in the "system" now, and there is no going around this system.

The point is that none of us can come out unscathed after enduring a legal process where things are said that hurt the core of our being, our soul.

To me, safety is no longer something we have to deal and comply with. It's no longer an important business or legal issue. Safety is much more important and personal than that. If safety does not become the heart and soul of a business, the likelihood of close calls becoming serious accidents will increase.

A serious accident will weigh on the hearts of owners and managers who care about their employees. An attitude of indifference towards safety and the safety of your employees could lead to a cell and a multitude of guilt.

If we make safety a personal issue as well as an ultimate priority as Kent Straszewski has done, we will know in our hearts that we did our very best. Accidents will still occur, but there is a lot of freedom in knowing that we've done our best to prevent them.

GCs continue to shift safety risks to subcontractors via the use of unfairly worded subcontracts. Read subcontracts carefully and do everything to modify contracts that unfairly allocate safety risk. Keep in mind that federal and state safety laws may take precedence over a safety related contractual agreement.

Remember: Teamwork begins with a fair contract!