The judge presiding over the case of an employer accused of negligent homicide is still deciding whether to accept a plea agreement that would not require prison time.

Bryan D. Johnson, 52, was charged in August 2019 after one of his workers, Rosario “Chayo” Martinez-Lopez, died in a trench collapse on a worksite in Granby Ranch. Johnson was initially charged with manslaughter, but a proposed plea agreement would have him plead guilty to criminally negligent homicide and reckless endangerment.

Johnson is alleged to have not provided an Occupational Safety and Health Administration compliant worksite, leading to unsafe conditions.

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Chief Deputy District Attorney Kathryn Dowdell said the district attorney’s office had consulted OSHA experts in the case and referenced the OSHA investigation in determining charges and consequences.

The plea deal outlines four years of supervised probation, up to 90 days in jail, 400 hours of community service, a $5,000 donation split between Habitat for Humanity Grand County and Grand County Search and Rescue, as well as requirements to attend Workers’ Memorial Day and worker safety seminars.

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Judge Mary Hoak would have discretion in deciding how much of the up to 90 days Johnson could spend in Grand County Jail.

Johnson would also be responsible for complying with all of the OSHA settlement regarding his company, ContractOne, which is based in Avon.

Should Johnson fail to complete the terms of his plea agreement, he’d be subject to serving three years in prison.

However, Judge Hoak was troubled by the proposed plea agreement, specifically the deferred judgement, and the potential message it would send the community.

“My concern, of course, stems from the fact that there’s a death in this matter. If there weren’t a death, I’d be very open to this plea,” Hoak said during the Oct. 1 hearing. “My bottom line is — what are we telling the community? That you can violate OSHA and it just isn’t that bad?”

Dowdell told the judge the prosecution feels the plea is appropriate for a number of reasons, including that the victim’s wife supported it.

“There really is no precedent for prosecuting a crime in Colorado such as this,” Dowdell said. “I think the message we’re sending this community is in fact a positive one and that is that we’re watching, that law enforcement is being aggressive and proactive in making sure workplace tragedies, such as this, are being monitored.”

Johnson’s attorney, Kevin McGreevy, agreed the case was a rare one.

“I’m going to talk in generalities, but I believe OSHA says there are deaths in trenches about 14-20 times a year, which has been fairly consistent for the last 15 years and … the number of prosecutions that we’ve found across the country are just a handful,” McGreevy said. “I think that by just prosecuting at all is a message to the general contractor community, in terms of taking OSHA seriously.”

He added that Johnson was a friend of the victim, has no criminal history and has become OSHA compliant.

Other details McGreevy shared included that Johnson was on site at the time of the death, had never dug a trench as deep or long as the one on the development site and wasn’t trained on how to do so, nor did he meet OSHA requirements for the trench.

A records request for the OSHA investigation regarding Johnson was denied due to the pending sentencing.

Despite arguments from both the prosecution and defense that the plea agreement was not only appropriate, but would send a message that Grand County would take action against employers who don’t provide safe work environments, Hoak was still hesitant. 

“This is a pretty sweet deal,” Hoak said. “I’ll go ahead and go down the road with Mr. Johnson, but there’s no guarantee that I’ll accept this plea when I get to the end.”

Hoak wanted to know more about Johnson and think over the proposed plea deal before deciding. She said she expected make a decision the week before the sentencing. If Hoak rejects the agreement, the case will go back to negotiating a new plea or proceeding to trial.

Johnson’s sentencing is scheduled for Dec. 17. 

Editor’s note: This story has been updated to clarify the terms of Johnson’s plea agreement, including an open potential jail sentence of up to 90 days.