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City Charter Crisis

Nelson and Apopka City Council wade into "unchartered" territory

Does the City Attorney serve at the Mayor or City Council's pleasure?

Where do Apopka City Council powers begin and end? Can it have a city clerk or city attorney removed, or does that require a Mayor's decision? Do they serve at the pleasure of the Mayor, Council, or both?
These are critical questions that Apopka Mayor Bryan Nelson and the City Council will need to answer to avoid what is shaping up to be a City Charter crisis.
In its April 14th edition, Nelson told The Apopka Chief that the decision to fire City Attorney Michael Rodriguez and Fire Chief Sean Wylam was up to him and that the 3-2 votes to remove them both (at the April 5th meeting 11 days ago) did not change his mind.
"It's just a ceremonial vote," Nelson said. "They have no authority to fire anybody."
The City Council, however, sees things differently.

"My interpretation of our Charter permits the collective City Council, of which our Mayor is included as part, the ability to fire the City Attorney, which we did at our last meeting with causes stated by three of the majority members," said Commissioner Kyle Becker. "Clearly, we will need to take further steps to make that a reality. It appears the Mayor seeks the will of our Council only on topics convenient to him."

Commissioner Diane Velazquez was also frustrated by Nelson's remarks.

"The days after the last marathon public council meeting, I learned through the Channel 9 News, The Orlando Sentinel, and the local Apopka Chief newspaper that the Mayor has no intention of removing the fire chief from his leadership position or terminating the services of our city attorney," Velazquez said in a statement to The Apopka Voice. "The Mayor referred to the official VOTE taken, 3-2 at the dais, as being "ceremonial". I researched the Apopka City Charter and Florida Statutes to find if the chair conducting an official public meeting can arbitrarily dismiss an official VOTE as ceremonial when an official VOTE was made by the sitting elected commissioners. To date, I can’t find any documentation or case law that would allow the chair/mayor to dismiss an official VOTE."
Orange County Commissioner Christine Moore, who represents District 2 (which includes parts of Apopka), also disagreed with Nelson's assessment of the Council's vote.
On her Facebook page from April 14th, she made the following statement:
"The (City) charter is quite clear that the Apopka general counsel serves at the pleasure of both the Mayor and Council. It is vital that all members of any board can freely consult legal counsel trusting the advice given. I pray [Mayor] Nelson gets another opinion."
Moore expanded her thoughts in a statement to The Apopka Voice on April 15th:
"I asked and received legal advice from a reputable attorney," Moore said. "It is important for the Council to get together on an attorney they can all support."
Moore also had advice for charter revisions that would deal with issues such as this one in the future. 
"The Council can only impact the two charter positions - attorney and clerk. The fire chief is up to the Mayor. However, I would advocate for a policy for annual reappointments, which would require council approval. The County Commission and School Board do so."
In a strong Mayor form of government, the Mayor is given a lot of power. Here is a part of what the charter lays out:
Sec. 2.04. - Mayor.
The mayor shall be the chief executive officer of the city and shall be responsible to the electorate for the administration of all city affairs placed in his/her charge by or under this Charter. The mayor shall:
  • Appoint, and, when the mayor deems it necessary for the good of the city, suspend or terminate all city employees and appointive administrative officers provided for by or under this Charter. Department heads shall be appointed by the mayor and ratified by the city council. The mayor may authorize any administrative officer who is subject to the mayor's direction and supervision to exercise these powers with respect to subordinates in that officer's department, office, or agency.
  • Direct and supervise the administration of all departments, offices, and agencies of the city, except as otherwise provided by this Charter or by law.
But the charter also makes a distinction as it applies to the city clerk and city attorney positions, where it seems to depend on what the definition of "and" is:
Sec. 3.01. - Appointment and duties of clerk and city attorney.
  • The city clerk and city attorney shall be appointed by the mayor and ratified by the city council. The city clerk and city attorney shall serve at the pleasure of the mayor and the city council.
Do you need BOTH or EITHER the mayor and/or city council to remove the city clerk or city attorney?
In the case of Wylam, it's clear that Nelson has the power to keep the fire chief, but how long can he maintain leadership in the current environment? Not only was there a 3-2 no-confidence vote by the council, but an earlier vote from the Apopka Professional Firefighters Association, where 85% (73 AFD firefighters) voted no-confidence against Wylam along with a statement that included 26 "major concerns".
Nelson, however, shows no signs of wavering.
In an interview with WESH-2 News a week earlier (on April 6th), Nelson said he would stick with Wylam.
"I think he's done a good job," Nelson said. "I mean, you know, it was an accident," he said. "We haven't had a lot of turnover. We’re putting in those things that maybe we were lacking, and he knows that continuous improvement is what he has to do to get the vote of confidence of the firefighters here in Apopka."
Becker, however, is adamant about his lack of confidence in Wylam to lead the Apopka Fire Department.
"While I agree that a vote of no confidence regarding Chief Wylam was ceremonial in terms of the authority the current Charter grants our Council, I think it shameful that our Mayor keeps finding excuses to defend the Chief’s performance when the vast majority of the Chief’s own workforce has given him the same vote of no confidence, as well as the State Fire Marshal’s report documenting training deficiencies, the significant negative findings of the Gannon report, a report the Mayor and Chief commissioned without the guidance of Council," Becker said. "Yet with all of this compelling evidence and more, the Mayor gives the Chief a perfect job rating and continues to publicly diminish the significance of the sand trailer in this tragedy based on his disgusting remarks in a recent WESH 2 news interview. I would challenge the Mayor to answer the question of why he or the Chief hadn’t done anything over the last four years. They are the ones accountable for the full day-to-day operations of the city and their department from day one and every day thereafter - no excuses.
In the interview with WESH 2 News, Nelson said:
"We're talking about one [sand] trailer, okay, one sand trailer that went through four fire chiefs, was never, ever taken out of service," Nelson said. "So if it was so dangerous, why didn't somebody say, 'Hey, fire chief, why don't you take it out of place?'"
Moore is also concerned about the AFD and how it would serve the residents of South Apopka if they were to be annexed.
"I watched this [April 5th] meeting last night," said Moore. "I hope the fire department gets the help they need now to move forward. I cannot support annexation of folks in South Apopka until the department is fully trained and Austin Duran’s family receives the peace they need to move forward, knowing that their son’s death was not in vain."
The next Apopka City Council meeting is scheduled for Wednesday, April 19th at 7 pm.
Apopka City Charter, Apopka City Council, City Attorney, City Clerk, Apopka, Apopka Mayor Bryan Nelson, Apopka Fire Department


7 comments on this item Please log in to comment by clicking here

  • JimNisbet

    Once again, your article starts in one place, and deteriorates into beating the fire department tragedy drum. So once again, I will post my list of questions. FYI, I will be posting these every time an article like this comes out until they are answered truthfully, in detail, and without bias.

    I've added a few and put it in a list format. Maybe Mr. Becker can take this list and do some investigating. Answering these questions completely and thoroughly would be an excellent expose for the The Apopka Chief!

    1. What is the make/model/manufacturer of the trailer? Can we get a picture of it?

    2. Does the trailer have any warning or caution signage, or safety devices?

    3. What is the specific sequence of events that led to this tragedy? The trailer didn’t tip itself. What happened step by step?

    4. The sand trailer was universally deemed unsafe to use or maintain. Where are the vehicle maintenance records on this?

    5. Who was the supervisor charged with the condition of this vehicle?

    6. Was the Chief provided this information by the people charged with using and maintaining this vehicle?

    7. Why was this vehicle not removed from service? Who decided to keep it in service?

    8. What are the union’s standards with regards to operating unsafe equipment?

    9. What are the union’s standards with regards to operating equipment you lack training to operate?

    10. At what point can a union member say "That's not safe to do and I'm not doing it," and why didn't that happen? Who is responsible for that CRITICAL training? When to say no…


    Monday, April 17, 2023 Report this

  • MamaMia

    I would feel more comfortable asking a Quija board a legal question about the power balance of the COA council, than to listen to this biased malarkey from these sooooo concerned people, offering us their legal advice, one here in the article above is Orange County Commissioner Christine Moore. Ms. Moore is choosing to take sides in this City of Apopka issue, because she is tight and buddy buddy with Commissioner Becker and Commissioner Velazquez, of the Apopka City Council. She was their for-hire campaign managers when they sought pliical office. Now, this 3-2 vote of the Apopka City Council, has become sooooo concerning to her she is PRAYING for the mayor to get a second legal opinion on his power? OMG...give me a break! So Ms. Moore (Christine) takes it upon herself to seek and receive legal advice on this issue, and not on a county issue either, because of her concern.....from a reputable attorney. Okay, then why don't you tell us who this reputable attorney is then? I find it very odd that Ms. Moore never had any issues with the AFD concerning their service, but now she doesn't support annexing South Apopka

    Monday, April 17, 2023 Report this

  • MamaMia

    Trying to post on here, but sometimes when trying to reread my posting before posting, it jumps and posts before I am ready. Anybody ever have that issue? Correction above: political office......Also Commissioner Moore was former Mayor, Joe Kilsheimer's paid for-hire campaign manager....hmmm, I wonder if Ms. Moore could have possibly asked for legal advice to her questions from Joe K's buddy, the former city attorney, who served a very very short short time at the city, (TC) while Joe was mayor and hired him? LOL. Yeah, AFD has been answering all these calls for help for the county, per the joint agreement between city and county, but Commissioner Moore never shared her concerns about AFD service before this 3-2 vote dispute! And it is a lot of calls per year spent serving Orange County!

    Monday, April 17, 2023 Report this

  • MamaMia

    I was at one of the previous city council meetings. This was when newly elected Mayor Kilsheimer came into power. The council was discussing what the mayor's salary should be. Should it be the same as Mayor Land's salary, or not? The problem was that Mayor Land was not taking his full salary, as he had forfeited most of his salary back to the city's coffers, and he was only taking his and his wife's health insurance money needs. I think it was around about $13,000 per year, that Mayor Land received toward his insurance needs, and he and her both were of Medicare age, so I don't quite get that part, but again, it was very honorable for Mayor Land to do that. Anyway, there was a big dispute going on about what Mayor K's salary as mayor should be. Some of the public only wanted Mayor K to get the $13,000 per year salary, what Mayor Land was receiving for his insurance needs. A salary study was done, and so it came down to a council vote. This is where it got fun.....the mayor asked the city attorney, Frank Kruppenbacher, was he allowed to vote on his own salary, as chairman over the council, and the city attorney gave him the okay to vote on his own salary, and I think it was passed for $ 150,000 per year. Then shortly thereafter, Mayor K said that we are going talk about the status of our city attorney, meaning to fire him. Mayor K wanted Frank Kruppenbacher out, and replaced with his choice, TC, as the city attorney. So the council was preparing to vote, when Mr. Kruppenbacher got up, said that" I will save y'all the vote and I resign", and he left right then, and there, and walked out. Later, Mayor K hired TC as his new city attorney. The difference in that scenario and the current council scenario is Mayor K wanted the city attorney fired, but Mayor Nelson does not want the city attorney fired. Under Mayor Nelson he created a legal department, with City Attorney, Michael Rodriguez, as the department head, in which ,at the city, all department heads are subject to the mayor's hiring and firing decisions, not the city council So the situation where Kruppenbacher worked is different, than the situation where Rodriguez works. This is my understanding of the way it is, and why only the mayor can fire the current city attorney. Am I a legal expert? No, and I sure don't claim to be! Just explaining what I have heard, and why it is different than in the past, with previous city attorneys. I believe the city council can fire the clerk because she is not a department head, but is an independent position. But why would they do that, as she is doing a good job?

    Monday, April 17, 2023 Report this

  • MamaMia

    I watch that TV ad, the one that states Ms. Moore wants more. Okay, Ms. Moore, here's more. LOL. You stated long ago you did not support annexation of South Apopka. Your explanation at that time was because Orange County has more resources to address South Apopka residents.. Now, you state unless the AFD is fully trained, and when until the Duran family can receive peace knowing their son did not die in vain, you don't support annexing the folks in South Apopka into the city. You are playing politics Christine. The phrase "fully trained" is very vague, as well as when, if ever, Austin Duran's family receives peace. That is very vague also Christine, you are politicizing this 3- 2 issue at the city, and you know you are!!!

    Monday, April 17, 2023 Report this

  • MamaMia

    It has been stated by some of the Apopka City Council watchers that when Commissioner Becker asked the city attorney if the city commissioners could fire him, and he gave Becker his legal advice, that it would have to be the council and the mayor to do so .....so some of the Apopka City Council watchers are saying that the city attorney should have reclused himself from giving advice, because it was supposedly a conflict of interest. Well, just look back when the former city attorney, Frank Kruppenbacher, gave former Mayor Kilsheimer, the advice that the mayor could vote on his own salary. Boy, people in the council chambers were very mad. Mad as hornets. That would seem like a conflict of interest, to me, but apparently, that was legally acceptable.

    Tuesday, April 18, 2023 Report this

  • wheresthepopcorn

    I would like to hear the answers to Jim's questions.

    Wednesday, April 26, 2023 Report this