Should BP CEO Tony Hayward Go to Prison?

Lewis Maltby

BP CEO Tony Hayward appears at a congressional hearing in Washington, D.C. in June. Hayward promised lawmakers he would 'take action' against any of his employees found to have put costs over safety ahead of the Gulf of Mexico oil spill.

In the wake of the Gulf of Mex­i­co oil spill dis­as­ter, many have called for BP CEO Tony Hay­ward and oth­er top exec­u­tives of the Lon­don-based ener­gy giant to go to prison. Most of this is just anger, but the idea deserves con­sid­er­a­tion. Indeed, in May the U.S. Depart­ment of Jus­tice opened crim­i­nal and civ­il inves­ti­ga­tions into what caused the spill. We will pros­e­cute to the fullest extent of the law any­one who has vio­lat­ed the law,” Attor­ney Gen­er­al Eric Hold­er said June 1.

But the fact that 11 work­ers died in the April 20 Deep­wa­ter Hori­zon oil rig explo­sion doesn’t auto­mat­i­cal­ly mean than Hay­ward or oth­er BP exec­u­tives should go to jail. Some­times work­ers are hurt even when man­age­ment is care­ful — and even if they’re not, neg­li­gence isn’t enough for a crim­i­nal con­vic­tion in U.S. courts.

I say this from per­son­al expe­ri­ence. When I worked as a busi­ness exec­u­tive, a work­er lost three fin­gers on a pow­er saw and almost bled to death, despite the fact we had hand guards on every machine and no one was allowed to use them unless they were prop­er­ly trained. So how did it happen?

But Trevor came in on Sat­ur­day with­out telling his boss and tried to use the saw, on which he hadn’t been trained. He took the guard off, and his hand slipped. We deserved hav­ing to pay for Trevor’s med­ical expens­es, lost income while he was out of work, and the decrease in his future earn­ings. We deserved every pen­ny the Occu­pa­tion­al Safe­ty and Heath Admin­is­tra­tion (OSHA) fined us. In fact, OSHA should have increased the fine.

But I shouldn’t have gone to prison because I didn’t antic­i­pate this series of events. For­tu­nate­ly for me, U.S. law doesn’t pro­vide prison terms for neg­li­gent man­agers and exec­u­tives. It’s not enough that an acci­dent could have been pre­vent­ed, and man­age­ment wasn’t as care­ful as a rea­son­able per­son would have been. For man­agers to go to jail, they must have been reck­less­ly indif­fer­ent” to dan­ger. They must know that a sit­u­a­tion exists that will prob­a­bly cause harm, and do noth­ing.

What does all this mean for Tony Hay­ward? Whether BP’s CEO — now rumored to be resign­ing in Octo­ber— belongs in jail depends upon whether the Deep­wa­ter Horizon’s prob­lems were obvi­ous­ly going to hurt some­one, and how much Hay­ward and oth­er exec­u­tives knew about it.

BP (includ­ing Hay­ward) obvi­ous­ly knew that drilling releas­es methane gas and that methane is explo­sive. The com­pa­ny knew it had to take steps to pre­vent a fatal explo­sion. The right thing to do would have been to have two seals in the well. That way, if one seal devel­oped a leak, the methane would still be con­tained. This is what BP’s own safe­ty engi­neers rec­om­mend­ed. But man­agers ignored their own experts’ advice in order to save mon­ey.

The back­up plan (if seals fail) is to push a huge set of iron slabs, called a blowout pro­tec­tor, through the pipe to seal it. BP had a blowout pro­tec­tor at Deep­wa­ter Hori­zon. A man­ag­er that cared about safe­ty would have had it inspect­ed reg­u­lar­ly and stopped drilling if it wasn’t work­ing prop­er­ly. BP knew there were prob­lems with blowout pro­tec­tor, but con­tin­ued to drill, not just for a few days while they fixed the prob­lem, but for 10 years, dur­ing which they paid lit­tle atten­tion to it.

The final back­up in this sit­u­a­tion is a methane gas detec­tor in the engine room. If all else fails, this will tell work­ers that they need to shut down the machin­ery before a spark caus­es an explo­sion. But the engine room on Deep­wa­ter Hori­zon didn’t have a methane detec­tor.

Most of all, a com­pa­ny that cares about safe­ty would reward work­ers who report dan­ger­ous sit­u­a­tions so they can be fixed. BP report­ed­ly did the oppo­site. In 2006, tech­ni­cian Stu­art Sneed found a crack in BP’s Alas­ka pipeline near a loca­tion where weld­ing was tak­ing place, told the welders to stop, and told his boss about the sit­u­a­tion. Sneed should have been reward­ed. Instead, he was fired. BP’s own inspec­tors sub­stan­ti­at­ed Sneed’s con­cerns about the cracked pipe. An arbi­tra­tor ruled that Sneed had been fired for report­ing the crack. But he didn’t get his job back, and his legal dis­pute with the com­pa­ny is still pend­ing.

It’s hard to escape the con­clu­sion that BP knew it was endan­ger­ing work­ers’ lives, and didn’t care. If what the media has report­ed about the Deep­wa­ter dis­as­ter is true, BP is guilty of manslaugh­ter.

But I learned long ago that you nev­er learn the entire sto­ry from news reports. That’s why we have tri­als. In order to pros­e­cute Hay­ward, and not just his com­pa­ny, we need to estab­lish what he knew about the Deep­wa­ter rig and when he knew it. We can’t assume that he knew every­thing that was hap­pen­ing on a rig 5,000 miles from his office in Lon­don.

But if the answers are what they appear to be, there is no doubt that the team of Jus­tice Depart­ment attor­neys Pres­i­dent Oba­ma dis­patched to the Gulf on April 30 should bring crim­i­nal charges against the respon­si­ble BP executives.

Lewis Malt­by is pres­i­dent and founder of the Nation­al Workrights Insti­tute and for­mer Direc­tor of Employ­ment Rights for the ACLU. He has tes­ti­fied before Con­gress many times on employ­ment issues and appeared on 60 Min­utes, Lar­ry King Live, and Oprah. He lives in Prince­ton, N.J., and is the author of Can They Do That?: Retak­ing Our Fun­da­men­tal Rights in the Workplace.
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