Anatomy of an investigation: The case that rocked the Apopka Fire Department - part three

Opinion/Analysis

By Reggie Connell/Managing Editor of The Apopka Voice

On September 18th, the City Council ratified the appointment of Sean Wylam as Fire Chief of the Apopka Fire Department after the retirement of former fire chief Chuck Carnesale. The week before that, City Attorney Joseph Byrd concluded his investigation into wrongdoing at the Apopka Fire Department, and found all allegations made against Carnesale to be either inconclusive or unfounded.

And with the investigation completed, Carnesale retired, and a new fire chief installed, that should close the book on one of the uglier chapters in Apopka’s history.

But has this truly been resolved?

In a three-part series entitled “Anatomy of an investigation: The case that rocked the Apopka Fire Department”, The Apopka Voice will analyze each aspect of this investigation – from the events and actions that led to it, the allegations, the evidence of those allegations, and the conclusions drawn from that evidence.

In part three of the series, The Apopka Voice analyzes the remaining allegations and Byrd's conclusions about them.

Questionable employment and promotion practices

It had been almost a year since Ray Thompson made his allegations known, and he was growing impatient.

Thompson, the Apopka Fire Department Deputy Chief, had brought his complaints and those of other AFD employees (according to Thompson) about Fire Chief Chuck Carnesale to City Administrator Edward Bass, apparently expecting action sooner rather than later.

But according to Thompson's whistleblower email in 2019, Apopka Mayor Bryan Nelson's affirmation of Carnesale remaining as fire chief at the April 17th, 2019 City Council meeting was the last straw.

"I, Ray Thompson, Deputy Fire Chief for the City of Apopka, was flooded with information regarding Chuck Carnesale, the Fire Chief for the City of Apopka, after Mayor Nelson's election, on or about 4/4/18," Thompson wrote in his second correspondence to City Attorney Joseph Byrd, dated May 3rd, 2019, and requested by Byrd after his brief email (dated April 25th, 2019) requesting action on his allegations from 2018.

"I'm writing this letter because I am concerned, because I quoted the below items verbally and have heard nothing back. After it was reported that the leadership was going to accept the current Fire Chief, I became concerned with my status."

This second correspondence by Thompson, along with his testimony and two other AFD employees became the basis of probable cause to begin the investigation. And over half of the 11 allegations (six) made were categorized as "questionable employment and promotion practices".

The report concludes with all six of those allegations related to those subjects.

Tampering with Test Scores of Applicants

According to the report:

"The written exam for the applicants for Fire Station 5 was created by Lt. Holderfield and proctored by Lt. Holderfield and Capt. Sanchez. Apparently, Chief Carnesale was also present during the examination days. It is unclear who actually graded the exams and the ultimate final disposition of the actual tests is unknown. Vicky Carnicella indicated that Lt. Holderfield and Capt. Sanchez graded the exams and Vicky Carnicella entered the scores on the spreadsheet. Lt. Holderfield recalled that Vicky Carnicella graded the written exams. Lt. Holderfield and Capt. Sanchez recalled the minimum score on the written exam was 75.34.

Any candidate receiving less than the minimum score was eliminated from advancing further. During the process on an unspecified dated, Vicky Carnicella was instructed by Capt. Sanchez and Lt. Holderfield to leave her computer on with the spreadsheet open and go to lunch. Holderfield did not recall directing Ms. Carnicella to go to lunch and leave her computer on but he specifically recalled that he had an awkward moment with Chief Carnesale when he informed him that candidate #168 did not receive a passing score on the written exam. Lt. Holderfield testified:

"We were moving forward in the process at the time with the written score. And, um, he said that this candidate 168 was moving forward. And I said, “That candidate did not pass.” He said, “Yes she did.” I said, “No she did not.” He said, “Yes she did." And I said, “No he- no she did not sir.” And then for the third time in a row he said, “Yes she did.” And stared at me. So I backed off. And that's how the conversation went. I knew for a fact that she didn't pass. Um, but that was how the conversation went."

Capt. Sanchez was present during the “awkward moment” between Chief Carnesale and Lt. Holderfield and he recalled telling Ms. Carnicella to go to lunch leaving her computer on as he did not want to involve her in something he felt was wrong for Chief Carnesale to insist upon. Lt. Holderfield was not aware of who changed the written exam score for Candidate 168.

Capt. Sanchez corroborated in his statement that Candidate 168 was not advancing because of a low test score and specified that he changed the highlighted color which would indicate a passing score, but he did not testify as to actually changing the score to a passing score of 76.943."

Despite the testimony of Holderfield, Carnesale, and Sanchez, a lack of physical evidence and Carnesale's choice not to testify were cited as reasons why this allegation was deemed inconclusive.

"The testimony as given in the sworn statements of Carnicella, Holderfield and Sanchez demonstrate by a preponderance of the evidence that the written exam score of Candidate 168 was, in fact, adjusted upward to allow that candidate to proceed in the hiring process. That action impaired the integrity of the hiring process. However, whereas 1) original exams cannot be located to corroborate the testimony; 2) there was no testimony of a person actually changing the written score of Candidate 168; 3) the testimony does not indicate a clear statement was made by Chief Carnesale instructing Capt. Sanchez and Lt. Holderfield to adjust the score but was only by implication of his behavior in the “awkward” conversation; and 4) Chief Carnesale is not available to refute, explain and be confronted with the evidence; the issue is determined as inconclusive."

Failure to Give Required Preference to Veterans in Hiring

According to the accusations, "Chief Carnesale failed to insure that Veteran's preference was given in evaluating applicants for the hiring at Fire Stations 5 and 6."

In the report, it states:

The spreadsheet that was used to track the various applicants for the hiring process for Fire Station 5 included a notation of the “(v)” for some of the applicants. In her sworn statement, Vicky Carnicella explained that she inserted the “(v)” to notate who was a veteran so that they could receive proper veteran's preference in the hiring. The importance of giving credit for the veteran's preference was communicated to Chief Carnesale according to Ms. Carnicella. The sworn statements of Ms. Carnicella, Lt. Holderfield and Capt. Sanchez, however, indicates that there was confusion as to how the veteran's preference would be factored into the hiring process. There appeared to be an accepted understanding that Apopka Human Resources was going to take care of insuring veteran's preference was calculated in the hiring process. However, no witness could explain how that could have occurred given the manner in which the candidates were selected, particularly if Chief Carnesale made a subjective determination about 13 of the 19 candidates.

Despite the alleged oversight, Byrd again ruled the accusation as inconclusive.

"Chief Carnesale was ultimately responsible to manage the hiring process to insure that City policies and state and federal laws were being observed. However, whereas, 1) confusion appears to have existed over who was responsible for insuring veteran's preference was considered in the evaluation; and 2) Chief Carnesale is not available to refute, explain and be confronted with the evidence; the issue is determined as inconclusive."

Failure to Utilize Objective Evaluations of Applicants in Hiring

In the report, it states:

"During the hiring process for Fire Station 5, testimony of those involved in evaluating the candidates indicate that while a process was set in place to give the appearance of a fair process with integrity, that process may have been thwarted by the involvement of Chief Carnesale. As noted hereinabove, each stage in the process was understood to eliminate candidates and reduce the number considered at each step in order to select the most qualified candidates. In their sworn statements, AFD staff involved in the hiring process noted Chief Carnesale's involvement in the process essentially nullified their evaluation. It appears a column in the spreadsheet organizing the evaluations (noted in Exhibit A), that column B entitled, “Presentation” was used to note Chief Carnesale’s subjective and personal evaluation of certain candidates who were either given a “4” or nothing in the column. Chief Carnesale requested copies of the candidate's driver's licenses so he could purportedly put a name to a face and this raised concerns for AFD personnel that it would appear discriminatory because the driver's licenses contained the birthdate (age) and the photo would disclose ethnicity. The driver's licenses were never produced and given to Chief Carnesale as he requested. During the interview process, it appears that Chief Carnesale, listened through the door grate from his office and requested certain candidates to come through to speak with him after the interview and exited through his office, others exited through the main entrance. When the interviews were complete, the staff involved recalled Chief Carnesale indicating that had chosen 13 who were to be hired and he was leaving the remaining six to the panel to determine."

Byrd found this allegation to be inconclusive, despite acknowledging that the fire chief has authority as it pertains to hiring firefighters.

"Standard Operating Guidelines (SOG) 6105.00.00 provides that the AFD Fire Chief has authority to determine the number, location, and type of work forces to be utilized. It is reasonable that the Fire Chief should have final approval of a new hire. Without Chief Carnesale providing a statement to explain his rationale of selecting certain candidates, it cannot be concluded by a preponderance of evidence that he acted in a discriminatory or disparate manner in selecting candidates and such would be a necessary to find violations of the above referenced policies to be sustained. Accordingly, whereas Chief Carnesale is not available to refute, explain and be confronted with the evidence, the issue is determined as inconclusive."

Discriminatory Hiring Practices

According to the report, "Chief Carnesale specifically required AFD personnel to notate African American candidates in the hiring process at Station 5 and was discriminatory in his hiring decisions."

Part of Chief Carnesale's involvement in the hiring process at Station 5 involved designating candidates by a notation of an asterisk in column B of the spreadsheet used to organize candidate information. Every witness provided a statement that they either knew at the time or could later determine that the asterisk noted a candidate who was African American. However, it appears from the sworn statements that the notation was used not to eliminate African-Americans, but to insure the new hires included African-Americans. A legitimate concern of some staff was that Chief Carnesale considered only African Americans as minorities and did not provide the same consideration for Latinos or Asians in the hiring pool.

Byrd, however, found nothing tangible to support those assertions.

"No evidence was found that any other minority candidates experienced discrimination in the evaluation process. There has been no evidence that Chief Carnesale intentionally discriminated in the hiring practices by notating which candidates were African American, in fact, it is likely the conduct was more akin to affirmative action in hiring. Accordingly, this issue is determined to be unfounded."

Failure to Discipline Favored Employees

According to the report, "an anonymous letter detailing allegations that Chief Carnesale's secretary, Carol Zimmerman, was improperly entering her time in the time-keeping system was received on or about September 17, 2018 by Apopka Human Resources."

"During an investigation of the allegations by Ms. Tangela Whaley (Human Resources Manager at that time) and City Administrator, Edward Bass, Ms. Zimmerman, around or about September 26, 2018, admitted that she adjusted her time in the computer from PTO to regular time on occasion but advised that Chief Carnesale approved same and gave her time off when she completed special projects or worked additional hours. The matter was resolved with Mr. Bass providing verbal counseling about proper use of the time clock and removing Ms. Zimmerman's payroll duties for 90 days while she would undergo re-training.

It appears that Chief Carnesale deferred the 2018 investigation and discipline of his secretary, Ms. Zimmerman to the City Administrator and Human Resources Manager. Whereas the time keeping matter was investigated and the discipline of Ms. Zimmerman is a matter of public record and whereas Chief Carnesale is not available to refute the allegations or explain his managing of the discipline matter and was in fact, was in the process of investigating additional recent misconduct of Ms. Zimmerman, the issue is determined as unfounded."

Discriminatory Favoritism in Promotions

According to the report:

"The issue of partisan favoritism in promotions largely arises from a change in an SOG for qualifications for Lieutenant with the AFD. The October 12, 2016 SOG changed the requirements. To be eligible to test for the rank of Lieutenant the requirements changed:

As of January 22, 2016:

2 years of continuous service, an average of 39 points on the last five performance evaluations, be a state-certified Fired Officer I, be a State-certified Firesafety Inspector I, be a State-certified Paramedic, and hold rank of Engineer or be on the Engineer's eligibility list.

As of October 12, 2016:

5 years of continuous service, an average of 39 points on last four performance evaluations, be a state-certified Fire Officer I, be a state certified Paramedic, hold rank of Engineer for a minimum of 1 year and not be on probation due to discipline or performance. Within one year of promotion to Lieutenant, become a state-certified Fire Safety Inspector and state-certified Incident Safety Officer within two years of promotion.

The practical impact of the October 12, 2016 change in the SOG meant that the seven incumbent Engineers were the only persons permitted to test for the seven open Lieutenant positions. It appears the decades old conventional wisdom of allowing the maximum number of qualified individuals to test (those on the Engineer's eligibility have passed the exam but not yet given the opportunity to sit as an Engineer) list was circumvented by the October 12, 2016 revision and although this was discussed with Chief Carnesale, he still insisted on the revision.

Another significant revision of the SOG regarding the promotion to Lieutenant occurred March 20, 2018 that impacted those seven who were promoted to that rank.

March 20, 2018 5 years of continuous service, an average of 39 points on last four performance evaluations, be a state-certified Fire Officer I, be a state certified Paramedic, hold rank of Engineer for a minimum of 1 year and not be on probation due to discipline or performance. If promoted to Lieutenant, candidate shall become a state-certified Incident Safety Officer within two years of promotion. The March 20, 2018 revision eliminated the requirement that the candidates who were promoted to Lieutenant had to become a state certified Fire Safety Inspector within one year. While this change applied to all seven candidates promoted to the rank of Lieutenant, according to Asst. Chief Wylam, the March 20, 2018 change benefitted only one person who was personally close to Chief Carnesale and had not completed the training for Fire Safety Inspector as the deadline neared.

Asst. Chief Sean Wylam is tasked with maintaining all the SOGs for the AFD as part of his responsibilities. In his sworn statement, he indicates that Chief Carnesale instructed him not to follow the typical protocol of publishing the change in the March 20, 2019 SOG through an email to all the AFD personnel.

Another occasion where Chief Carnesale appeared to unilaterally determine to waive criteria for activities for some personnel was in regard to selection of members of heavy rescue teams or “special ops.” Initially, Chief Carnesale issued a memo dated June 8, 2017, naming initial team members but clarifying that a formal selection process would be initiated later. No formal selection process ever occurred. In addition to team members meeting minimum requirements to be part of a shift team it was required that one of the team members needed to be a certified paramedic.

Chief Carnesale selected one individual to serve on the team who did not have nor completed the required certifications and was intended to be the Paramedic for the shift team but did nor completed his Paramedic school for 18 months after being placed on the team."

Despite the evidence and testimony, Byrd acknowledges that the fire chief has broad discretion as it relates to promotions, but still finds the allegation inconclusive.

The subject of SOG 6122.00.00 is “Promotions” and SOG 6122.00.00 I. D. provides that the AFD Fire Chief “reserves the right to alter this process as needed for the benefit of the department.” Whereas Chief Carnesale is not available to be confronted with the evidence or explain his rationale for limiting the number of candidates for promotion and why he believed the requirement for completing Fire Safety Inspector was no longer important, a finding of discriminatory treatment of personnel as to promotions cannot be shown by a preponderance of evidence and accordingly, the issue is determined as inconclusive.

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In the conclusion of part three, The Apopka Voice offers its own observations and opinions on the investigation, the administration, City Council and a possible way ahead for the city, its residents, and the Apopka Fire Department.