Far From Settled, Whistleblower Case Against Flagler Beach Fire Department Focuses on Captain’s Truthfulness
FlaglerLive | August 12, 2014
It’s been 18 months since Flagler Beach City Manager Bruce Campbell fired the fire chief, two professional firefighters and two volunteers as a result of two separate incidents involving drinking on the job. Campbell has since reorganized the department, elevated Bobby Pace to fire captain—the chief’s renamed position—and portrayed a department more cohesive and less dysfunctional. Its main controversy for now—as it seems the department can scarcely steer clear of controversies—is its proposed purchase of a $600,000 fire truck, which has generated supportive town hall meetings and a dissenting petition bearing upwards of 450 names. The latest town hall meeting on the matter took place just yesterday.
But the case of the fired firefighters is far from over. Two of them, Shane Wood and Jacob Bissonnette, sued the city after they were fired, charging wrongful termination and retaliation. Aside from the two firefighters, the men at the center of that case are Campbell and Pace. Campbell is a focus of the case because of the way he handled the disciplining of the two firefighters, which Wood and Bissonnette say was far harsher than the way Campbell handled what they consider more grave matters involving Pace. And Pace is at the center of the case because the two firefighters claim, beside the allegedly preferential treatment he received, that he’s lied in his job application, falsified documents and was elevated to captain as part of Campbell’s plan to get rid of the other firefighters.
The outcome of the case will have much bearing on the city in several ways. The two firefighters are seeking to be returned to their posts, with back pay. Should they win, it would not be a cheap settlement for the city. Beyond that, the credibility of Campbell’s disciplining and managerial decisions hinge on the outcome, as may the credibility of Pace’s appointment.
Pace himself, in a May 20 deposition with Dennis Bayer, the Flagler Beach attorney representing Wood and Bissonnette, repeatedly invoked the Fifth Amendment’s right not to incriminate himself. Bayer asked Pace about being placed on administrative leave when he faced a charge of obstruction of justice last year, and invoked the fifth. Bayer asked him about the way Pace documented the hours worked at the station by a probationer. Pace invoked the fifth. Bayer asked him about surveillance tapes that would have shown whether the probationer had worked those hours, and that were mysteriously erased. Pace invoked the fifth.
“Are you serious?” Bayer asked Pace, when the captain first invoked the fifth. Pace said he was doing so on his criminal attorney’s advice, Aaron Delgado, the Daytona Beach.
“Well,” Bayer said, “we’ll just get a court order. I’m not going to play this game.”
On Wednesday, Bayer will appear before Circuit Judge Dennis Craig, who may rule on a motion to compel Pace to answer the questions posed him during the deposition. The answers do not appear crucial to Bayer’s case: he has assembled a case involving the testimonies of Campbell, a city detective and almost a half dozen firefighters that attempts to show Wood and Bissonnette were disciplined far differently than they might have been had Campbell applied the same standards he’s applied to what the fired firefighters see as his more favored staffers.
The case builds on a particularly sharp distinction, too: that Wood and Bissonnette were fired over storing and taking one sip of home-made alcohol on Christmas Day, in the fire house but not while they were on duty. Bayer wants to show that Campbell treated Pace gingerly on several occasions that involved lying or worse.
Pace, Bayer argues in his motion to compel, “refused to answer questions regarding an investigation against him in which Plaintiffs were involved.” Bayer argues that Pace may not claim the 5th amendment’s privilege because the criminal case against Pace, resulting from the obstruction charge, was resolved through a deferred prosecution agreement, and ultimately dismissed.
Pace’s answers “would not furnish any link in a chain of evidence needed to prove a crime against him because double jeopardy has attached,” the motion argues. “It is perfectly clear that [Pace] is mistaken in his assertion and that the answers cannot possibly have tendency to incriminate. Moreover, he is a key witness to this lawsuit and his unavailability would unfairly prejudice” Bissonnette and Wood.
Despite Pace’s reluctance to answer some questions, he answered many, and the deposition opens a window now just into the case but into the workings of the fire department and its relationships, as well as into Campbell’s managerial style, and the key matter of Pace’s job application.
Pace has been working at the department since 2005, initially as a part-timer. It was his first firefighter job. Ion 1993 he’d been convicted of drunk driving in Port Orange.
He did not report that conviction on his job application with Flagler Beach.
But subsequently, he altered the application.
“So it looks like you just basically took the same form, crossed out ‘no,’ initialed it, and then put ‘yes,’ that you had, in fact, been found guilty or adjudicated of a violation of law,” Bayer said.
“What happened here,” Pace explained, “was that I was informed by the attorney way back that I was a young man, and that this was going to be withheld from my record, or expunged, what have you. I had been through several background checks since that time period. When I had filled out this application, I explained the fact that I did not think it was actively on my record. After the fact, they asked me to change it, which I did.”
Liz Williams, then and now a detective with the Flagler Beach Police Department, was in charge of checking Pace’s background and verifying whether his statements had been truthful. Beside the DUI charge, Pace had also been charged with an open-container infraction—also not included on his application.
“Were you punished at all for not making a truthful application when you were hired in 2005?” Bayer asked.
“No, I was not punished,” Pace said. “I was asked to get a letter that clarified it, which I did.”
Bayer’s questions then formed an encircling pattern, hitting on several other issues before returning to the matter of the “lying on an application form.” Bayer asked about the Christmas, 2012 incidents that led to the firefighters’ firing. Aside from the matter of Wood and Bissonnette storing the alcohol at the station, and sipping from it on Christmas day, there had been the house fire the evejing of the department’s Christmas party.
Then-Chief Martin Roberts answered the call, though he’d been at the party, and had had alcohol there. That started the string of meetings between Pace and other firefighters, allegedly the clique that one independent investigator said was one half of the department’s dysfunctional groups, with Wood, Bissonnette and Roberts forming part of the other group (Pace in the deposition said no such cliques existed, describing relationships in terms of occasional differences and tensions, but nothing necessarily out of the ordinary for a small organization. Campbell had hired the investigator. The report turned into one of Campbell’s building blocks toward firing the firefighters. See the investigator’s report here.)
A series of internal allegations and counter-allegations followed, with each move looking like retaliation for another: Pace and other firefighters (most of those currently on the job) met, talked, then reported the drinking at the party before the house fire, and reported Wood and Bissonnette drinking at the station on Christmas Day.
Roberts had asked Bissonnette to look into the allegations of rounded hours for probationer Vitaly Tsabak, the felon assigned to carry out community hours at the fire department. The Department of Corrections’ probation department was also investigating the handling of the hours. Along the way, Bissonnette reviewed surveillance tapes of the station to verify whether Tsabak had worked the hours marked. Asked about that, Pace invoked the Fifth. The tapes were mysteriously erased just as Williams, the detective, was seeking them out. Pace invoked the Fifth on that as well. Bissonnette had given Pace a heads-up on the investigation on Jan. 3, when Pace got upset that a firefighter of equal rank was looking into something involving him. The two had a confrontation.
Pace, the deposition shows, did not go through the chain of command when he reported the drinking. Initially, Pace took the matter to Marshal Shupe—a Flagler Beach City Commissioner, a volunteer at the station, and a friend of Pace’s who often did home improvements at Pace’s house or gave him furniture. He also reported the issues to Campbell.
Pace didn’t go through the chain of command, he said, because the chief “didn’t do anything about it” when he initially talked to him about the incidents, though he conceded that firefighters never went to Campbell, the city manager, rather than to the chief about issues, as Pace did.
When Bayer asked Pace whether he was conscious of the fact that he’d be “top dog” if the three people he was complaining about—the chief, Wood and Bissonnette—were fired, Pace said “that did not come into the conversation.” The aim, he said, was consequences.
“And in your mind, the only consequence that was appropriate for Shane and Jake was termination?” Bayer asked, completing his questions’ circle.
“That’s not what I said,” Pace said. “You asked me if that had been discussed. And I said that probably, yeah, that was discussed. But I had not—all I wanted to see was that there was a consequence for these acts. That’s all that I was ever in favor of.”
“So do you think termination was too harsh of a consequence?”
“No,” Pace said.
“You think it was appropriate?” Bayer asked.
“Okay. How about lying on an application form. Is that appropriate—is dismissal an appropriate sanction for that?,” Bayer asked.
After an objection from his attorney, Pace said: “In my mind, that wasn’t a lie that was going through on that application form.”
“How about rounding up community service hours by several hours on a pop?” Bayer asked. But Pace again invoked the Fifth. When Bayer asked him if Tsabak, the felon, had paid Pace money to illegally round out his hours, Pace invoked the Fifth.