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 Two: “Accusations – Unfounded and Inconclusive” the investigation into wrongdoing at the Apopka Fire Department concludes with Chief Carnesale as the subject. But after three months, 11 interviews, 21 exhibits, and six correspondences, the 36-page report finds eight allegations against Carnesale to be inconclusive and three unfounded. Is this because Carnesale was not interviewed, or was there simply not enough evidence to merit any allegations as being founded?
Accusations: Unfounded and Inconclusive
not leading to a firm conclusion; not ending doubt or dispute.
Apopka City Attorney Joseph Byrd spent three months investigating 11 allegations made by Deputy Fire Chief Ray Thompson both verbally in 2018 about former Apopka Fire Chief Chuck Carnesale, and then again with an official whistleblower email in April of 2019.
Some of the evidence Byrd produced included:
- 17 exhibits, including a spreadsheet with test scores of AFD candidates (with asterisks next to certain names), memos, copies of driver’s licenses from AFD candidates (not published because of confidentiality laws), Standard Operating Guidelines for AFD promotions, EMS billing and a Special Operations Team, with the vast majority of evidence produced in the exhibits focused on the NEB Group, the former EMS billing vendor for the AFD, and not on Carnesale.
- 11 interviews with 10 different subjects were conducted that produced 472 pages of testimony.
- A total of six correspondences, including emails, faxes, letters, and memorandums sent in relation to the origination of the investigation, its intent to move forward, and negotiations near to its conclusion.
Despite the time spent, the witnesses interviewed, and the exhibits put into evidence, all 11 allegations were concluded by Byrd to be either unfounded or inconclusive.
How does that happen? Considering Byrd took the time before starting the investigation to establish enough probable cause to move forward, why were none of the allegations founded?
Byrd responded to an email from The Apopka Voice to comment about the investigation just after its release. And while he wanted to let the report stand on its own merits, he also gave an explanation as to why eight out of 11 accusations were given inconclusive status.
“Primarily, I have no comment to the specific details of the report as it stands for itself. Chief Carnesale was prepared to review the evidence and give his statement but determined on his own to retire prior to doing so. He was cooperative and never attempted to impede the investigation in any manner to my knowledge. Since he did not have the opportunity to review the evidence and provide an explanation or refute what was said in sworn statements, the allegations as to violations of city policy and AFD Standard Operating Guidelines were determined to be inconclusive.”
The report clears Carnesale outright of three accusations with an “unfounded” conclusion, however Byrd stops at the water’s edge as it applies to the eight inconclusive judgments, because Carnesale retired without being interviewed. But is it truly the responsibility of the accused to “provide an explanation or refute what was said in sworn statements” or should the evidence make the case, or not, on its own? According to Byrd, because it is City and AFD policy, the employee’s testimony plays a more important role in proving or disproving an allegation.
“In an administrative investigation, without the Chief having the opportunity to explain or refute the evidence, the record is not complete to determine if there were violations of City policy or AFD Standard Operating Guidelines. Accordingly, they are determined to be inconclusive. In fact, since Chief Carnesale determined to retire, the issues became moot. The report does conclude some allegations were “unfounded” – that is, there was not enough evidence that Chief Carnesale would even need to respond to in order for that finding.”
Allegations and Findings
The first allegation cited in the report is labeled Improper Political Activity. It states that ‘Chief Carnesale, while on-duty and on City property, coerced subordinate personnel to participate in political activity by endorsing specific candidates through signing a petition.’
In the report, Byrd writes:
“During the campaign period for the 2018 municipal elections, one candidate for City Council, Suzanne Kidd, came to the administrative offices of the AFD at Fire Station 1 and left petitions to support her candidacy with Chief Carnesale. Asst. Chief Bowman stated that he recalled Chief Carnesale told him about the petitions and that when Ms. Kidd left the petitions at his office, Chief Carnesale called City Hall to inquire if it was permissible for the petitions to be in the building. Moreover, Asst. Chief Bowman recalled that Chief Carnesale informed him that either Mayor Kilsheimer or City Administrator Glen Irby assured Chief Carnesale that it was permissible.”
The Apopka Voice contacted former Apopka Mayor Joe Kilsheimer, former City Administrator Glenn Irby, and Suzanne Kidd, but they did not confirm or those accounts.
Both Kilsheimer and Irby denied talking to Carnesale about campaign flyers, and also said they were not contacted by Byrd for confirmation of those events.
“Chuck never asked about putting out flyers, nor would he,” said Kilsheimer. “Chuck has always been very professional and he has always conducted himself according to the highest ethical standards. Any allegation that he did otherwise is just one more underhanded attempt to stain a good man’s reputation.”
Irby also denies Carnesale asking him about petitions, but did say that he would have told him not to distribute petitions during working hours.
“No, sir. (That) type of activity should be frowned upon while working.”
Kidd said that she never asked Carnesale to distribute the petitions in any inappropriate manner. She too, was not contacted by Byrd for confirmation of her actions as represented by witnesses in the report.
Byrd also included three other statements in the summary, including the current fire chief Sean Wylam, who all said they felt pressure by Carnesale to sign the petitions.
“In his sworn statement, Lt. Jeremy Holderfield stated that Chief Carnesale requested that he and his wife sign a campaign petition for Mayor Kilsheimer on at least three occasions and once via telephone during Lt. Holderfield’s lunch break. Chief Carnesale indicated that he would meet him off-site to retrieve the signed petitions. Lt. Holderfield stated that he felt “pressured” to sign the petitions. Assistant Chief Sean Wylam stated that he was asked by Chief Carnesale on several occasions to sign a petition on behalf of Ms. Kidd and that he felt pressured by Chief Carnesale to sign the petitions.” In his sworn statement Capt. Sanchez stated that he overheard Chief Carnesale speaking with others about signing petitions for Ms. Kidd.”
In his findings, Byrd states that the evidence was inconclusive because Carnesale did not agree to an interview. He goes on to recommend to the witnesses that they forward their testimony to the Florida Elections Commission if they feel they were pressured by Carnesale.
“The testimony of all witnesses corroborate that Chief Carnesale permitted Ms. Kidd to leave her petitions at the Administrative Offices. Whereas Chief Carnesale is not available to refute the allegations or explain if he was authorized by City Administration to allow Ms. Kidd to leave her petition forms, the allegations in regard to the violations of City Policy are inconclusive.”
The case against NEB
By far the most evidence collected by Byrd was against the NEB Group, the former EMS billing agent for the City of Apopka now being sued by the city. Although the investigation and lawsuit of NEB is ongoing, the allegation against Carnesale in regards to NEB is that he ‘continually insisted, after being warned about significant concerns, on using an EMS Billing Company whose conduct placed the City at great risk.’
The report states:
“AFD engaged NEB (f/k/a National EMS Billing) to provide EMS billing at least as early as 2007 and prior to or just after Chief Carnesale assumed responsibility over EMS for the AFD. On or about February 27, 2012, Chief Carnesale (then Captain Carnesale) requested to retain NEB as a “sole source” in written communications with the Fire Chief. On or about October 29, 2018, in a memo to the City Administrator, Chief Carnesale noted that NEB was currently under review, but in memos dated November 3, 2016 and October 9, 2017 Chief Carnesale specifically requested to continuing using NEB as an evaluated source claiming the company had “one of, if not the best, collection percentages” and that their fee was 5% and was provided to “the department each year in an EMS scholarship in the amount of $2,000.916 There is a preponderance of evidence from the investigation and subsequent litigation that demonstrates the information in Chief Carnesale’s memos of November 3, 2016 and October 9, 2017 was false at the time he presented them to the City Administrator’s office,
- NEB was not a sole source for EMS billing services
- NEB’s fee was 6% not 5%
- NEB’s collection rate when properly analyzed was not near 70%
- Neither NEB nor the City to date has provided evidence of a $2,000 annual contribution
The relationship between AFD and NEB appears spurious from the description by the owner and President of NEB, David Sulik, of the nature of the so-called annual contribution by NEB.
In emails to Capt. Sanchez, Mr. Sulik wrote:
We periodically come over for a meeting and bring a donation bypassing the City and for use of the Department. Needed books for staff I believe was what the last one went to and others in the past were for children’s Saturday events. Basically whatever you want it for without City intervention
Going back to Chief Carnesale’s predecessor, we have given about 10-12K with the last one just before you took over. We have had a check here for $1500 for whatever you need you to get whenever we get together. If you have an immediate need, I can mail it. I leave the pay to open, so it can go anywhere. If you want it split up, no problem. I would probably just avoid an individual since a tight audit may say it’s income to the person. It‘s been our policy over the years to avoid giving the municipality because it‘s too easily lost in a general fund.
As part of the litigation with NEB, Sulik produced a $1,000 check made to the Apopka Firefighter’s Association, however, the Association has no other record of a contribution and the City has no record of processing any other “contributions” from NEB or Sulik. No direct evidence has been found regarding the purchase of books or the existence of any “scholarships.”
The lack of competence of NEB in providing EMS billing services was highlighted in its disclosure of protected health information in a court filing that required an emergency order to seal the record, to strike the document in its entirety and required the City notifying all individuals whose medical health information was compromised by the incompetent act of Mr. Sulik or his staff. The conduct of NEB exceeds the preponderance standard for evidence that the company was not qualified to provide the EMS billing services. Additionally, as more information comes to light it is further apparent that NEB’s conduct in improper coding may have exposed the City to severe penalties and disgorgement of fees received from Medicare and Medicaid. The impact of NEB’s conduct will likely be felt in the City for the next year or more.
In budget meetings with AFD staff, Capt. Sanchez raised his concerns to Chief Carnesale about the numbers not adding up with NEB and his desire to change companies. Chief Carnesale‘s response to Capt. Sanchez was that he was not going to let Capt. Sanchez change what he had in place for the EMS billing.”
Byrd also found this allegation inconclusive, because Carnesale retired before being interviewed. He does, however, refute the claim that Carnesale benefitted financially in his dealings with NEB.
“There can be no doubt that the decision to continue to use the services of NEB over several years was an egregiously poor management decision for which the full impact upon the City of Apopka might take years to fully realize. However, to date, there is no evidence that Chief Carnesale benefitted financially from engaging NEB. Moreover, poor management decisions are within the discretionary authority of officials and are not necessarily designated as “misconduct,” particularly, here where there has been an ingrained culture in the AFD to use sole or evaluated sources for decades that avoid a competitive bidding process. Accountability for the negligence of poor management decisions does not require a finding of misconduct. Allegations of misconduct should only be sustained where evidence of intentional wrongdoing is clear. Whereas, Chief Carnesale is not available to refute, explain and be confronted with the evidence, the allegations in regard to the violations of City Policy are inconclusive.”
Did Carnesale mislead the administration?
According to the report, there were also allegations that Carnesale ‘knowingly presented false information to the Apopka City Administration.’
In the report, Byrd writes:
“The allegations related to Chief Carnesale presenting deceptive information to City Administration largely relate to his use of “run numbers” in addition to the information in the memos requesting to use NEB as a sole or evaluated source as noted above. When calls are made to 911 by citizens, a call or “run number” is assigned for those calls that are not related to the Apopka Police Department. Numbers are generated for fire calls, rescue calls, simple ambulance runs, lift station alarms (public services issue), test calls, and trouble alarms, among other reasons. Uses for the run numbers include, but are not limited to, quantifying risk assessment and educating city decision-makers for issues such as budgeting personnel and equipment. It appears that in various public forums, Chief Carnesale used the total run numbers as Fire and EMS calls. For example, at an award ceremony, Chief Carnesale indicated that AFD responded to over 10,000 calls when in fact, the actual numbers for fire and EMS was 8,787.”
Byrd also found this allegation undfounded because Carnesale retired and was not interviewed.
“The use of exaggerated numbers could arise to a violation of Apopka City policies if reliance on the presentation of those numbers related to budgetary decisions. However, whereas, Chief Carnesale is not available to refute, explain and/or be confronted with the evidence, this issue is determined to be inconclusive.”
The most serious of the allegations
Perhaps the most severe allegation leveled against Carnesale was one of “potential misappropriation of funds” – described as ‘knowingly using budgeted funds in a manner which was impermissible’ in the report.
“The improper use of budgeted funds was raised as an allegation against Chief Carnesale and labeled as “potential misappropriation.” In Florida, the term “misappropriation” is an older term of art in legal analysis for the criminal act of theft as currently defined. Misappropriation as theft that requires a person knowingly obtained or used the property of another with the intent to deprive the other person of a right to the property and appropriated it to his or her own use or the use of any person not entitled to the use of the property. No evidence in this investigation was found which indicates that Chief Carnesale personally benefited from any decision related to AFD funds. Accordingly, any allegation of misappropriation as defined by Florida Statutes is determined as unfounded.
In his sworn statement, Lt. Holderfield indicated that during budget meetings, Chief Carnesale referred to a $30,000 line for public education as “his slush fund” meaning that Chief Carnesale “spent that money on whatever needs and wants he wanted in admin.” Lt. Holderfield further stated that multiple times Chief Carnesale would tell him, “Your budget’s gone. You have nothing left in your budget.” Asst. Chief Wylam corroborated Lt. Holderfield’s statements that funds for public education were used for other uses in the AFD but did not specifically recall Chief Carnesale referring to that budget line as his “slush fund. Moreover, Asst. Chief Wylam stated that funds were not used for the needs for which they were budgeted. It appears that Chief Carnesale allocated more funds to public relations than previous administrations. Previous administrations apparently would have used those funds for operational needs. It also appears that the use of sole source by the AFD in procurement has been inappropriately used as the vendors are not, in reality, a sole source in many instances. Additionally, staffing issues increased overtime for salary budget for activities that were not directly related to operational necessity. These issues regarding increased overtime was brought to Chief Carnesale’s attention.
As noted above, as defined by Florida Statutes, an allegation of misappropriation is determined as unfounded. The bulk of the concerns about Chief Carnesale’s fiscal management is certainly a matter for City Administration to review for its wisdom and proper stewardship of tax-payer dollars and make necessary corrections as viewed its discretion. However, there is not a preponderance of evidence that demonstrates that Chief Carnesale’s fiscal management met the standard misconduct in terms of violation of City Policy. Accordingly, this issue is determined to be unfounded.”
In Part Three: How does Apopka move forward?
In the final part of the series, The Apopka Voice analyzes the remaining allegations and Byrd’s conclusions about them, and then offers its own conclusions, and a possible way ahead for the city, its residents, and the Apopka Fire Department.