Men Behind Fire Chief Debacle
Since Inweekly broke the story about former Mayor Ashton Hayward settling the federal lawsuits filed by his former fire chief and deputy chief (Inweekly, “Fire Chiefs Vindicated,” Jan. 31), the newspaper has repeatedly asked to interview new City Attorney Susan Woolf and Rob Larkin, the Allen, Norton & Blue attorney 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 the 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 mainly 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 Larkin and Mayor Robinson’s deputy city attorney, Rusty Wells, were the masterminds of the 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 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 conversations.
In his affidavit, 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 Larkin said he agreed with Wells’ recommendation. Larkin also recommended that the fire chiefs be placed on administrative leave, according to his affidavit.
The fire chiefs’ attorney made a motion to strike Wells’ sworn statement because the city never identified Wells as a 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. Wells 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 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 the firefighter hiring process and 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 Wells’ agreement, recommended to Hayward that he direct an investigation into the concerns.”
Hayward agreed the investigation was necessary and agreed with Wells’ 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. The list, titled “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 a 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 Wells 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 before 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 the problem 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.
Falling on the Sword
The conflicting affidavits create more problems for Mayor Robinson and City Attorney 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 who reviewed the 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.”