Since Inweekly broke the story about former Mayor Ashton Hayward settling the federal lawsuits filed by his former fire chief and deputy chief, the newspaper has repeatedly asked to interview new City Attorney Susan Woolf and Allen, Norton & Blue attorney Rob Larkin, who handled the lawsuit for the city and its insurance carrier.
While Mayor Grover Robinson committed to the interviews at this last two press conferences, they have yet to happen.
We have sought to find out who came up with legal scheme to place the chiefs on paid administrative leave and conduct an independent investigation that was used to convince Mayor Hayward to fire the chiefs in May 2016.
The newspaper particularly wanted details about a Jan. 29, 2016 meeting in Pensacola City Hall where it appeared the plan to go after the fire chiefs was concocted.
Now we may know why the mayor’s staff has dodged the interviews. Thanks to court documents received last week, Inweekly found that Rob Larkin and Mayor Grover Robinson’s deputy city attorney, Rusty Wells, were the masterminds of plan that eventually cost the city and its insurance carrier $575,000, plus the city’s legal fees.
In a legal move that some have described at best as “unique,” Wells and Larkin in March 2018 submitted affidavits asserting they made the recommendations to the mayor. Attorneys, who have used attorney-client privilege to shield their conversations with their clients from discovery and depositions, rarely give affidavits about those very conservations.
The affidavits show the plan to go after the fire chiefs was concocted in discussions and phone calls between Wells and Larkin before the Jan 29 meeting. Jan 29 meeting was where they executed their plan.
In his affidavit, Rusty Wells, who was the special assistant to the city administrator at the time, said he recommended Beggs & Lane attorney Russell Van Sickle be hired to conduct an independent investigation of the fire chiefs.
Attorney Rob Larkin said he agreed with Well’s recommendation. Larkin also recommended that the fire chiefs be placed on administrative leave, according to his affidavit.
The fire chief’s attorney made motion to strike Wells’ sworn statement because the city never identified Wells as person likely to have discoverable information. The statements made by Wells contradicted the sworn statements by Hayward and other city officials.
After the motion to strike was filed, the city reopened the settlement negotiations that led to Hayward agreeing to pay the fire chiefs over half a million dollars before he left office.
According to Wells
In January 2016, Larkin contacted him and told him that the City had been served with an EEOC complaint filed by Fire Chief Matt Schmitt, according to Wells’ affidavit. He said that he was aware of issues involving Chief Schmitt and Deputy Fire Chief Joe Glover not following hiring practices and Schmitt was the subject of an allegation of retaliation made by Fire Lt. Edward Deas.
“I was particularly concerned by the issue of Chiefs Schmitt and Glover departing from the hiring procedures,” wrote Wells, in his sworn statement.
Wells and Larkin discussed retaining an independent investigator. Wells suggested Russell Van Sickle of Beggs & Lane. Larkin had never met Van Sickle.
“I then discussed this suggestion with City Administrator Eric Olson and Chief Finance Officer Dick Barker, and they asked me to contact Mr. Van Sickle and inquire as to his availability for this matter,” wrote Wells.
He called Van Sickle and told him about the EEOC complaints, concerns with firefighter hiring process and the Deas’ allegation.
A meeting was set for Friday, Jan. 29, 2016. Wells wrote that the mayor, Olson, Barker, Assistant Administrator Keith Wilkins, Larkin, Van Sickle and he were in attendance. Wells recommended hiring Van Sickle to do an independent investigation.
“I observed at the meeting that the Mayor stated his decision to approve the hiring of Mr. Van Sickle, and directed Mr. Wilkins to oversee the project,” wrote Wells. “My observation is that the Mayor and his staff were following the advice of the attorneys retained by them.”
According to Larkin
According to Larkin’s affidavit, Chief Human Resources Officer Edward Sisson in January 2016 contacted Larkin “regarding a formal complaint of retaliation that he had received from Lt. Edward Deas.” The HR director also told him of some mismanagement issues in the PFD.
“I advised Sisson that I would address the Deas matter as well as Schmitt and Glover’s management issues with City administration,” wrote Larkin. “I also asked Sisson to prepare a list of the issues that Human Resources or City administration had experienced with PFD management.”
Larkin then called Wells. They discussed the issues and agreed to recommend an independent investigator. A meeting was set up for Jan. 29 at city hall.
“Wells and I briefed the group about the ongoing concerns about mismanagement of the PFD,” wrote Larkin of the city meeting. “I, with Well’s agreement, recommended to Hayward that he direct an investigation into the concerns.”
Hayward agreed the investigation was necessary and agreed with Well’s recommendation to hire Van Sickle.
Larkin wrote, “Additionally, I advised that the City place both Schmitt and Glover on paid administrative leave during the investigation. I advised that my recommendation was due to the nature of the Deas matter.”
He wrote that Hayward agreed, issued the directive and left the meeting.
Sisson’s affidavit contradicts Larkin’s account. He did not receive a “formal complaint of retaliation” from Lt. Deas. Sisson wrote that Deas had only submitted a written rebuttal to his written reprimand on or after Dec. 22, 2015.
In January 2016, Sisson contacted Larkin. He wrote that he told Larkin “about the Deas matter and I thought Schmitt and Glover had again retaliated against Deas.”
Sisson wrote, “In my opinion, Deas’ Dec. 22 rebuttal meant his issue was still unresolved and required additional attention by City administration.”
Contrary to Larkin’s affidavit, Sisson said the Allan, Norton & Blue attorney advised him to raise the matter with city administration and to prepare a list of issues Human Resource or City administration had encountered with the PFD. Note: The list, “2015 Joe Glover Matters,” only focused on the deputy chief.
Motion to Strike
Rocco Calamusa, the attorney for Schmitt and Glover, quickly moved to strike the affidavit of Wells.
The city never identified Wells as person likely to have discoverable information that the fire chiefs may have used to support their claims–a violation of Federal Rules of Civil Procedure. Plus, the city in its defense had asserted the attorney-client privilege regarding any conversation between Wells and Larkin and Well and other city officials, if Larkin was present.
“Now, through the affidavit, Defendants offer conversations between Wells and Larkin and others which it earlier claimed privileged,” wrote Calamusa. “Courts have routinely held that the attorney-client privilege cannot be used as both a shield and a sword as Defendants attempt to do here.”
Wells’ affidavit also contradicted the testimony of Hayward, Olson. Sisson and Van Sickle.
Under oath, Hayward said he didn’t recall Wells giving any input at the Jan. 29 meeting and Olson and Larkin had made the recommendation to place Glover on leave and investigate.
Van Sickle said Wells contacted him to attend the Jan. 29. He was only told the city had an issue and wasn’t told about the EEOC or any issues at the fire department prior to the meeting.
In the discovery requests signed by Olson, no mention was made of any conversations with Wells related to Glover. Olson testified he was unaware who hired Van Sickle.
Sisson testified he had no conversations with Wells or Barker related to Glover. In his affidavit, Wells wrote that he was aware of issues related to the PFD hiring process, but how could he know about issue if Olson and Sisson said they didn’t speak with Wells?
“Defendants cannot now, after the close of discovery, submit an affidavit by an individual, who was not disclosed and which is inconsistent to the previous sworn testimony by their representatives,” wrote Calamusa.
The conflicting affidavits create more problems for Mayor Grover Robinson and City Attorney Susan Woolf. Larkin and Wells submitted sworn statements to the federal court that differ significantly with the facts given by city officials. Which statements are the truth?
One experienced trial lawyer that Inweekly asked to review documents said it appeared the two attorneys were “falling on the sword” for their client,
He added, “If you fall on the sword, you’re going to get cut.”
In June 2016, I wrote about the Deas’s allegation (Part 2: Inside the Report) – the one that Larkin felt was so egregious that it had to be investigated.
Here is the back story:
On Aug. 11, 2015, Fire Lt. Edward Deas sent Chief Matt chmitt a document labeled, “Timeline PUFFA.” In the document, Deas asked the chief to investigate whether Deputy Fire Chief Joe Glover was pressuring Fire Lt. Stefon Andrews, the president of PUFFA.
PUFFA is a charitable organization. The African-American members of the Pensacola Fire Department formed the Pensacola United Fire Fighters Association (PUFFA), which incorporated in 2010. In June 2014, the association was granted 501(c)(3) tax-exempt status by the IRS.
According to IRS regulations, an organization may qualify for exemption from federal income tax if it is organized and operated exclusively for one or more of the following purposes: religious, charitable, scientific, testing for public safety, literary, educational, fostering national or international amateur sports competition, or the prevention of cruelty to children or animals.
They are not unions. PUFFA has no more official standing with the City of Pensacola or the Pensacola Fire Department than Five Flags Rotary or Pensacola Federation of Garden Clubs.
Deas was president of the organization from 2010 until the second half of 2014 when there was a dispute over PUFFA’s financial records. When PUFFA earned tax-exempt status, some members became concerned over Deas and other PUFFA officers not having the proper recordkeeping. Not able to satisfy the membership, Deas ultimately resigned as president and quit paying dues in December 2014.
In his timeline, Deas gave his version of how Deputy Chief Glover, Capt. Derrick Streeter, Capt. Jose Cobbs and Capt. Marquette Oliver mistreated him “so they could control PUFFA and the uses (sic) its name and authority to go after their own agenda.”
Deas offered no evidence that his PUFFA dispute with Glover, Streeter, Cobbs, and Oliver or his resignation as the group’s president impacted his job at PFD. There were no allegations of harassment or intimidation regarding his job.
He also asserted that Glover tried to intimidate the new PUFFA president Stefon Andrews by writing a letter for Andrews to sign asking for a meeting between PUFFA members and the mayor in July 2015. Deas said that Andrews refused to sign it and did not send the letter.
Then Glover sent out a text to approximately a dozen PUFFA members saying he planned to run for president next year. Deas said this was proof that Glover and the older members were intimidating Andrews as president of their organization. Again, he offered no evidence that Andrews’ PFD job had been impacted.
However, he did bring back up his resignation as president of PUFFA. He said the older members had no proof he had mishandled the group’s finances.
“This embarrassment ultimately led to my forced resignation as president,” wrote Deas. “Now the same scenario is continuing with Stefon Andrews being the target since he is the new president and is not going along with the plan. I would ask you to please investigate this matter.”
Though Deas is not a member of the fire union, the collective bargaining agreement gave him an option to use its grievance procedures. However, a veteran fire union leader told Inweekly that he believed Deas’ complaint would not have been seen as a grievance.
“In my opinion, from my years in the leadership of the union, that complaint did not violate an article in the collective-bargaining agreement,” he wrote Inweekly. “In order to file a grievance, an article has to have been violated.”
Rusty Wells stated in his affidavit that it was the hiring process that bothered him the most. Van Sickle’s investigation that the chiefs had not manipulated the process to favor or exclude any of the eight candidates. In fact, Glover had approved all eight candidates, knowing that two positions would be coming open in the preceding months. Van Sickle admitted in his deposition that the city didn’t have written hiring procedures for the fire department in January 2016.
Here is the back story:
In January, the Pensacola Fire Department had eight qualified applicants for six positions. Chief Schmitt made the decision to forgo peer interviews. When he came back from military leave, Deputy Chief Glover was told that he and Schmitt would conduct interviews.
“I knew it was different from how we conducted the process when HR was involved, but it was the chief’s call,” Glover told Inweekly. “Though we were interviewing for only six spots, there was a strong likelihood that more positions would open up soon, and the other two would be hired later.”
Glover said he passed all eight candidates. However, Sisson halted the process when he found out a firefighters’ panel hadn’t interviewed, scored and ranked the applicants.
While the firefighters’ panel was not a written rule, Van Sickle concluded the chiefs used “poor judgment” to conduct the hiring process without it. However, he did not find that Schmitt or Glover were attempting to manipulate the hiring process to include or exclude any particular applicant.
In his December 2017 deposition, Mayor was asked about these issues and whether they influenced his decision to fire Schmitt and Glover:
Were they fired for not following hiring protocol? Hayward: “I don’t recall.”
Were they fired for retaliation against Deas? Hayward: “I don’t recall.”