General Ray Whitley (2)

Ray Whitley

Hendersonville Fire Department officials were cleared of any criminal wrongdoing last week in response to a complaint brought by a former alderman candidate that city assets – including on-duty firefighters - were used in a political campaign against him.

Chris Spencer lost by 359 votes on Nov. 6 to Jonathan Hayes in a hotly contested race for the Ward 5 seat previously held by Hamilton Frost.

Members of the Hendersonville Firefighters Association Local 3460 endorsed Hayes and campaigned door-to-door for him and at least two other candidates on several occasions.

After filing several Open Records requests with the city beginning Nov. 14, Spencer says in a March 26 letter to Sumner County District Attorney General Ray Whitley that he obtained documentation that showed “a plan to conspire to use city assets as well as City employees to unfairly and potentially illegally help elect specific candidates.”

Whitley opened an investigation, assigned Sumner County investigator Kelly Murphy to the case and announced in a press release on June 25 that “no criminal acts or activity has taken place.”

“The most serious allegation was that several firemen, while on duty, campaigned door-to-door on Saturday, Oct. 6, 2018 while wearing official fire department attire for Mr. Spencer’s opponent and perhaps others,” wrote Whitley. “Official time sheets seemed to bear this out, but once the investigation was initiated it was determined that the time sheets in question were off by one day, and the firemen were not on duty.”

While the firemen were wearing shirts that said Hendersonville Fire while campaigning, the t-shirts were not official fire department apparel, according to Whitley.

General Whitley also said that Spencer’s allegation that city assets were misused in the November 2018 election could not be proven.

Spencer requested Whitley look into the case after an internal investigation by Hendersonville Fire Chief Scotty Bush.

Bush reported the findings of his investigation in an April 9 letter to Mayor Jamie Clary.

In that letter, Bush says that Spencer’s requests for Fire Marshall Paul Varble’s text messages and phone logs revealed that Varble, who is also the political treasurer of the firefighters association, had used a city cell phone for personal business and that he gave Varble an oral reprimand. Bush also says in the letter to Clary that his investigation found that all of the firefighters were off duty while campaigning.

“As this investigation is complete I again want to assure you that these accusations brought forward by Mr. Spencer are unfounded and inaccurate,” writes Bush.

When asked why he still asked Whitley to investigate, Spencer said that he asked several times for corrected time sheets of the firefighters who initially appeared to be campaigning while on duty, but didn’t receive them until after Whitley’s investigation. 

How it all started

Spencer says several people asked him about firefighters campaigning for his opponent and wondered if they were allowed to do so. On Nov. 14, he filed an Open Records request for the text messages and emails of several aldermen between Bush and Varble.

“Scotty and Paul thank you so much for your support today,” read one message from Hayes to Bush and Varble on Saturday, Sept. 8. “Tony and Keith went with me from fire station five they did an awesome job I am grateful! We put a pretty big dent in when Brook (sic) including an additional 10 yard signs, and probably more signs than my opponent!

“I am very appreciative for these next few Saturdays Paul but please don’t break any kneecaps. (smiley face)

“Haha… glad it’s working for you,” writes Bush. “You got this.”

In another text obtained by Spencer dated Aug. 22, Varble asks to buy Ward 3 Alderman Arlene Cunningham lunch.

“Thanks so much for lunch!” writes Cunningham the next day. “… Most of all thank you for your support! Just wanted to confirm I voted “YES” on the 18/19 budget. I checked with Kay Franklin to make sure it was properly recorded. It was reported correctly. I’m not sure how the inaccurate info came about.”

Two days later Cunningham asks for help campaigning.

“I understand the strategy of targeting certain campaigns with boots on the ground. Understand Paul Frisbee is one of those. Paul Frisbee and I share the same constituency. Can the guys also mention they are also supporting me too as well? Just a thought.” 

Spencer alleged that a third text message found on Varble’s phone shows an alderman attempting to use his office to force endorsements for certain candidates.

“That’s bs fop not endorsing (Alderman) Peg (Petrelli), Bs,” says Ward 6 Alderman Matt Stamper in a text to Varble dated Oct. 26. “I don’t know if you are in FOP if you are pass it along that it’s upset me beyond words them not endorsing Peg and Arlene. They don’t need cash contribution if money’s tight in FOP budget, but they deserve an endorsement.”

After finding a text message from Varble to several firefighters coordinating a door-knocking campaign, Spencer made several more requests, including the work schedules and time sheets of the firefighters listed.

When the time sheets appeared to show three of the firefighters were on duty when they were supposedly campaigning, Spencer says he sought further records and asked Mayor Jamie Clary to look into the matter. Clary asked Bush to investigate.  

City to purchase cell phones for personnel

Bush, who once served as president of Local 3460, said the local union has supported Hendersonville candidates for years.  It had been several years since members of the local firefighters association have campaigned door-to-door, however.

“They only do that when they feel like they can make a difference,” he said.

As chief, Bush says he’s stepped away from the local union and doesn’t influence their decisions.

“The local is the local,” he said. “Even if I said I strongly disagree with what you’re doing, they don’t have to listen to me.”

He said the text message uncovered by Spencer didn’t dispute that.

“That message was sent to me and I simply responded to it like I do every other text message,” he said. “I got a text at around 7 p.m. I responded and I said ‘ha ha.’ That by no means, means I’m in a conspiracy against anybody.”

Bush says he doesn’t have a city-issued cell phone.

“That’s going to change. Because obviously I thought I was doing the right thing by saving the taxpayers money by not having a second cell phone,” he said, adding he put money in this year’s budget for city-issued phones.

“Our line item went up because I’m going to get cell phones for everybody that doesn’t have one,” he said.

Bush said that includes Varble.

“The area of concern was he doing local business while on duty. Well I don’t know that. He can take a break any time he wants to. But I told him that’s probably not what you should be doing with a city cell phone. I told him then the oral reprimand will disappear when you get your own phone and quit using the city cell phone for that. That’s what I felt like was the right thing to do and so he complied and so it went away. That’s within the city rules and regulations.”

Cunningham: No conspiracy

“The fire association for years has supported certain candidates for races – and contributed financially,” said Cunningham. She said she had lunch with Varble like she did four years prior.

“They wanted to ask me a few questions and tell me they were supporting me in my campaign,” she said. “I don’t know what this conspiracy theory is in [Spencer’s] head.” 

Cunningham said she told Varble during the lunch meeting that she didn’t need firefighters to knock on doors for her, but then she reconsidered and texted back that firefighters could knock on doors for both Paul Frisbee, who was running for the other seat in her ward, and Cunningham.

“As far as me conniving with the fire department – I was concerned about my own race. Period,” she said.

The D.A. report

According to the 261-page report obtained from Whitley, Murphy met with Local Union IAFF Attorney Joyce Cooper and reviewed questions that would be asked of the various Hendersonville Fire Department employees on May 15. Interviews were completed at Hendersonville City Hall.

Firefighters interviewed included Administration Chief Brian Fann, Chief of Training Division Westly Patrick, Station 3 Capt. Steve Burtnett, four firefighters and a senior firefighter. All are asked the same questions.

Each was asked if they were aware that the city rules and regs stat that an employee can’t engage in political activity, support for or opposition to any candidate while “on duty” or acting in an official capacity. They all said they understood.

All said they were off duty while door-to-door campaigning.

On May 20, Murphy writes: “I confirmed with Mrs. Arlene Cunningham via telephone that the phrase “operation boots on the ground” was in fact a phrase she used and not the fire department employees.

In a phone interview with Hayes, Murphy asks what was meant by the phrase “not breaking any knee caps.”

Hayes responds, “it was used jokingly due to the fact some of the guys were tired when coming off shift, and then would come out and assist with campaign functions and Paul was having to keep the guys motivated.”

The report contains written statements from HFD Administrative Coordinator Vickie Frost and Deputy Fire Chief Mike Holt about the incorrect time sheets. 

“When I transferred over to this position, I discovered that time sheets had not been processed for a period of six months,” wrote Frost. “During the process of correcting this issue the blank timesheet that was pulled to us had incorrect dates. This was an oversight. There was no malicious tampering with timesheets.”

The report also includes 30 open records requests made by Spencer to the city between Nov. 14 and April 26 as well as the city’s responses to those requests. The requests included text, email and phone logs, as well as the work schedules for firefighters believed to be campaigning.

Spencer not satisfied

Spencer says he’s not fully satisfied with Whitley’s investigation.

“My reaction is that Mr. Whitley used the Little Hatch Act law as reason not to prosecute. Two state statutes are the ones I pointed out,” said Spencer pointed to state laws, including one that addresses official misconduct.

Spencer also says that most of the documents included in the report are ones he supplied.

“They didn’t use their subpoena power to obtain additional text messages and emails,” he said.

“I don’t care that the fire association endorsed. I don’t care that I lost. What I care about is using my tax dollars to defeat me. I have the right, if I feel like my government was used to defeat me – I have the right to transparency.”

Whitley: No crimes committed

“We looked into everything,” said Whitley. “But that was the most disturbing allegation at the time – that firemen were campaigning on city time. That was one of the major points that I was interested in, and that was alleviated.

“I’m concerned with violation of criminal laws,” the D.A. added. “All I can do is prosecute crime and I find that there’s no crime here.”

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