Where there’s smoke, is there always fire?

Submitted by Suanne Z. Thamm
Reporter – News Analyst
February 18, 2015 2:30 p.m.

Fernandina Beach residents will need to wait a bit longer to find out. Many city firefighters, joined by supporters and former city firefighters, filled Fernandina Beach City Commission (FBCC) Chambers for the FBCC’s Regular Meeting on February 17, 2015 to listen to commissioners explain why they were considering backing off a recommendation they had adopted at their last Regular Meeting on an emergency basis to investigate problems in the city’s Fire Rescue Department (FRD).

City Attorney Tammi Bach, who had been charged by the FBCC to “coordinate an investigation using an independent source such as a consultant or retired fire rescue personnel to review the Fire Rescue Department’s command structure, operational efficiencies and staffing” recommended against such an investigation after consulting with the City’s outside labor counsel, who voiced concerns that such a move at this time might adversely impact the city’s defense in former city Human Resources Director Robin Marley’s Whistleblower lawsuit.

On a 3-2 vote, with Commissioner Tim Poynter and Mayor Ed Boner in opposition, commissioners agreed with Bach to put off their investigation at this time. Voicing unhappiness with the manner in which department complaints have been handled to date, commissioners agreed to charge City Manager Joe Gerrity with resolving the leadership and management problems before proceeding to conduct their own investigation. However, Vice Mayor Johnny Miller made a second motion, which Poynter seconded, to revisit the matter in 60 days at the April 21, 2015 meeting. This motion passed unanimously. The Mayor asked for a progress report from the City Manager in 30 days.

Despite serious differences between the firefighters and the City Manager, both sides, reinforced by the City Commissioners, took pains to reassure the community that firefighters were continuing to do their jobs protecting property and rescuing people with their extremely high levels of professionalism.

Background

Although problems in the FRD have been simmering for over a year, the general public did not become officially aware that something might be amiss until the February 3, 2015 FBCC Regular Meeting, when retired FRD captain Tommy Spicer spoke. (See https://fernandinaobserver.com/2015/02/05/fbcc-agrees-to-investigate-fire-rescue-department/) The FBCC was so concerned about both Spicer’s comments and information they had received individually from firefighters, that it declared an emergency to expand the meeting agenda for further discussion and action. They invoked Section 136 of the city charter and called for an investigation. The resulting resolution, which was passed unanimously, was to be brought back to the February 17 meeting in written form for final consideration.

Neither Bach nor Gerrity raised concerns at the February 3 meeting about the potential for negative impact on the city’s defense against Marley‘s Whistleblower lawsuit. Marley filed her lawsuit on November 18, 2014 alleging that she was fired as retaliation for voicing concerns over “gross mismanagement, misfeasance, and/or malfeasance to an appropriate government official.” Her suit lists 10 factual allegations and 6 violations of the Florida Whistleblowers Act, which the city denies.

Marley has claimed that she repeatedly advised Gerrity of her concerns regarding acts of “gross mismanagement and misfeasance on the part of the City of Fernandina Beach’s Fire Department.” On October 21, 2014 she was notified by telephone of the City Manager’s intent to terminate her employment. She was sent a letter informing her that she had been officially terminated on October 30, 2014.

During the past six months the City Clerk’s Office has been inundated with public records requests for documents and information concerning FRD personnel matters. Many of these requests have been made anonymously. Information gathered from these requests has been forwarded to city commissioners, the media, and others.

The city manager charged the city Police Department last fall to conduct an inquiry into many of the allegations. Charged to act within constraints imposed by the city manager, the Police investigation was concluded with little fanfare or follow up action. Meanwhile, the complaints have continued to escalate, and unhappiness of the firefighters even spilled over into the fall City Commission elections.

Public Input

Without any preliminaries, Mayor Boner moved straight into public input. First to speak was firefighter Chett Lyncker, who advised commissioners that he was speaking as both president of the firefighters’ Local 2836 and a concerned private citizen. He reminded commissioners that this was the first time that the union has spoken publicly about the issues in the FRD and that those issues affect public safety. He said, “We implore you to conduct this investigation.” For the commission to not proceed because of the pending Marley lawsuit, Lyncker said was a stark contrast to the urgency that the commission had expressed at the previous meeting “to seek the truth and insure public safety.”

“Facts do not cease to exist because they are ignored,” Lyncker stated. He said that there is urgency to addressing the problems to avoid potential liability for citizens and the city.

Retired FRD captain Tommy Spicer followed Lyncker. Spicer read a quote stating that the first responsibility of a leader is to do no harm. “It does not mean, ‘do nothing’,” he was quick to add. He strongly urged the FBCC to move forward with the investigation of the FRD. He said that the reason the Marley lawsuit exists is that “the City Attorney and the City Manager failed properly to take action to address the many issues within the Fire Department.” He said that he did not understand why Marley’s lawsuit would have any bearing because all the information surrounding her complaint is available through public records request and exit interviews of departing city firefighters.

Spicer alleged that the change in direction presented strong information that the City Attorney and the City Manager want to stall any investigation mandated by the FBCC out of concerns over what might be revealed “about two sadly unqualified chiefs and retaliation against firefighters who dared express their concerns.” He reiterated concerns raised at the previous meeting over the hiring of a third FRD chief when such a position had not been advertised or budgeted. He renewed a call for an independent, outside investigation, citing concerns over the thoroughness of the earlier inquiry initiated by City Manager Joe Gerrity. “The city cannot afford for you to misdiagnose or underestimate the magnitude of your decision tonight and its impact. Public safety is at risk.”

City Attorney weighs in

Reporting on her discussions with the city’s labor counsel, City Attorney Tammi Bach said that at this time such an investigation was probably unwise. She said that any investigation notes and records would become public records and could adversely impact the city’s position in defending against the Marley lawsuit. Bach said that the parties were about to enter the discovery phase of the suit “in the next few weeks” where there would be depositions, firefighters would be interviewed. She stressed that her recommendation to oppose an investigation at this time was strictly based on its potential to impact the Marley case, not because it would expose anything “good, bad or indifferent.”

Bach reminded commissioners that her recommendation was on the record but that they could act as they wished. She also informed the commissioners that she has been involved in three investigations, interviews, with every single firefighter and chief who has worked for the city. Only one of those occurred under the administration of the current FRD chief and deputy chief. She said there are tapes from every one of the interviews. She conducted the interviews with then-Human Resources director Robin Marley, and “there was never, ever, any indication that people’s safety was at risk.” She said that if additional issues have arisen since that report last fall, she is not aware of them. No serious problems were uncovered during the investigations.

Gass and Miller support attorney’s position

Following Bach’s statement, Commissioner Pat Gass moved to deny the resolution calling for the investigation. Gass said, “I personally have confidence in our city manager’s ability to handle the situation, and given the reports from the state and the high marks that our Fire Department has received, it … they are doing well. Our fire insurance rating has gone from a 5 to a 3 on its way to a one is outstanding. That’s my motion.”

Vice Mayor Johnny Miller seconded the motion. He expressed confidence in the recently hired operations chief Peter Bergel who has a strong background outside this community to be able to handle any investigation. “He knows these people, he knows the chief,” Miller said, adding that such a move would address Bach’s concerns and save the city money. Miller said that from his research fire departments are moving away from their traditional roles in fighting fires and concentrating more on emergency rescue services. “When is the last time we had a fire that required FRD response? He asked. The answer: February 5. Gerrity offered to supply him with annual figures. Miller expressed his opinion that the role of the chief seems to be changing from directing firefighting operations on site to administration.

Commission Discussion

First to speak was Commissioner Tim Poynter. “I think we’re kind of missing the point here,” he said. “I’ve never believed it was about community safety. I believe it’s about leadership, and a chief to me is someone who leads. If it’s just someone who can fill out a spreadsheet, why not just get an accountant? The reason I believe there is a problem in the Fire Department is poor hiring decisions by the city manager. We have a chief and a deputy chief who do not have the experience, the gravitas, to win the trust and belief of those under them. There is a reason why most chiefs have 25 years of experience [in a fire department] before they are selected. It’s not because they have to run out and do fires – because they typically don’t – but what they do have is experience and that is why they can lead firefighters.”

Poynter cited the continuing problems with firefighters leaving the city, after the city has invested in their training. This has led to a constant training mode to produce well-qualified firefighters for other jurisdictions. He said that while he understood the concerns about not jeopardizing the city’s legal defense in the Marley case, “All that is going to come out anyway through discovery and all that. If this commission does not want to move forward with an investigation, I want to know from the city manager—what are you going to do about this problem, because this is a problem.”

Gerrity said he was glad that Poynter asked that question. “First of all,” he said, “I have no personal animosity toward any of these individuals here [the firefighters in the audience]. I actually have great respect for them. They are very well trained … they perform a level of service that is far above anything else in northeast Florida. I want it right for you, too. I want them to have the confidence in fire department administration that they need to have. I think we can fix this.”

Poynter said, “But this has been going on for a year, right?’

Gerrity replied, “But the first thing I need to do is get everybody back to work. Hopefully that’s going to happen next Monday.” This was a reference to FRD Chief Jason Higginbotham’s 3-month extended leave and Operations Chief Peter Bergel’s 3-4 week absence due to family emergency. Gerrity continued to express confidence that the situation can be repaired. “But I will tell you,” he said, “whether I am city manager or someone else is here, the Fire Department cannot go back to 1980. They have to live by the standards that have been established by the state. It’s a different ball game. McDonald’s isn’t the same in 2015 as it was in 1980. Everything has changed. Responsibilities are different. Maybe we need to take another look at what we’ve been doing.” Boner asked for clarification of chain of command in the Fire Department. Gerrity said that Jason Higginbotham is the chief. He has placed Deputy Chief Fino Murallo in charge of emergency services and Chief Bergel in charge of operations. Highly respected former FRD Chief Dan Hanes, who left the city for a position in South Florida, put the current command structure in place.

Poynter tried to amend the motion to add a provision calling for a full-blown hearing if the matter is not resolved in 30 days, but Gass would not accept the amendment because of the on-going lawsuit. Poynter said, “I’m absolutely convinced that all the discoveries in the world will come out with this suit, and that is going to happen soon. Thirty days from now, if we don’t have these problems resolved, we need a full investigation. We need to get this done.”

Gass said that if there were an investigation, she’d like the Florida Department of Law Enforcement to conduct it. Poynter said that he was not suggesting who should do it because that was the task given to the city attorney. Poynter, in response to a Gass comment, said that the pending lawsuit could go on a year or more. “So we are just going to leave everything the way it is because of a lawsuit?” he asked.

Gerrity reassured the commission that “we are not going to leave things the way they are.”

Commissioner Robin Lentz chimed in before the vote to agree with Poynter and his statements about the need for leadership. “The city manager and I have had many private discussions about this,” she said. “I’m with Commissioner Poynter that we charge the city manager with fixing this problem. I don’t know that it can be fixed in 30 days. I’m willing to look at 60 days. It puts your job on the line, Joe, when you can’t fix it.”

Gerrity said, “It certainly does.”

Lentz went on to talk about the need to follow a fair process in filling jobs, where everyone can apply. “That’s where we’ve gotten ourselves into a mess here,” she said. She added that when she took office in December, she took an oath to protect the city. In a veiled reference to the pending litigation she said, “I feel I need to stick to that. I’m willing to give the city manager 60 days to fix this.”

Miller asked Gerrity to recap the hiring process for the current chiefs, in light of many complaints surrounding the selections. “When Chief Hanes left in 2012, he recommended that Jason Higginbotham [be appointed chief]. I have to take some responsibility for that,” Gerrity added, “because we cut 5 positions from the FRD that year, and the cuts were too deep. One of the positions I cut was the Operations Chief, which Higginbotham protested, saying he needed that position.” Gerrity told Higginbotham he couldn’t have the position that year, but he never brought it back. “I have to take that responsibility on myself,” Gerrity said. “Quite frankly I was unaware of the mandates set by the state. Had I known of that, I might have thought differently. That’s how it evolved to this point. There are other circumstances that I will share with you privately, if you’d like.”

Gerrity did not fully address the hiring process concerns that Miller raised, but Miller did not press.

When the vote was taken only Boner and Poynter stood in opposition to the City Attorney’s recommendation.

The second motion

Following the vote, Miller moved to revisit an independent investigation in 60 days based upon commission re-evaluation of the city manager’s solution. Poynter seconded the motion, which will come back at the April 21 FBCC Regular Meeting.

More Public Input

Roy Smith, former candidate for city commission, was granted permission to speak. Smith said that he recalled that sometime during the summer the city manager had lunched with the firefighters and reported that there were no problems in the Fire Department.

Gerrity denied having said that there were no problems, but Smith was adamant that he had said that. “Go back and look it up,” he said, “because I thought at the time, ‘How could there be no problems when the firefighters are always here [at FBCC meetings]?’” Smith went on to agree with Poynter that everything will come out in discovery during the Marley lawsuit. “It seems to me,” he said that between the city attorney and the city manager, they are always covering up tracks. … Something needs to be done about this; it’s ridiculous that it has gone on this long. You should have gone out and advertised the [chief] positions. You put two people in the positions who did not have the experience to lead your fire department that takes care of the town. All I hear is, ‘there is no problem.’ You cannot conduct this investigation in-house because you are going to get cover-ups. Apparently that has happened already. The city manager definitely doesn’t need to be involved in it. Obviously, when there is smoke, there’s fire. It’s got to stop.”

Gass asked how Smith got all his knowledge. All you have to do is pay attention at Commission meetings.” Gass chuckled at that remark. Smith continued, “Believe me, this is where we should find information. I have also spoken with firefighters.”

FBCC votes to delay consideration of investigation for 60 days

Commissioners voted unanimously to support the second motion, with Boner calling for a progress report after 30 days. The other commissioners concurred.

Editor’s Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.