OFFICE OF THE CITY ATTORNEY

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1 CITY OF MIAMI OFFICE OF THE CITY ATTORNEY EXECUTIVE SUMMARY JULY 1, JUNE 30, 2012 Julie O. Bru, City Attorney

2 Message from the City Attorney September 17, 2012 This is the fourth annual report that I present as your City Attorney. Once again, I thank the members of the City Commission for allowing me the privilege of serving as the City s in-house corporate counsel and trusting me to supervise the professional staff of the Office of the City Attorney. This report is presented in an abbreviated version because throughout the year we have provided a monthly accounting of the significant cases and issues handled by the office and a quarterly report of the costs associated with outside counsel. City leaders have faced a third year of unprecedented economic challenges brought on by continued high levels of unemployment and distressed real estate values. The Office of the City Attorney has played a key role in assisting policy makers and administrators in tackling the legal issues associated with the difficult but innovative fiscal policies adopted by the City Commission in the areas of labor management and collective bargaining. I am proud to highlight in this report the variety and complexity of legal work undertaken by in-house attorneys. Their achievements, as demonstrated in this report, are remarkable. They are guided by the goal of providing the best legal advice possible. Their commitment, work ethic and impressive results demonstrates the value to the City of continuing to maintain an adequately staffed and funded law department to provide the City s legal services. Julie O. Bru City Attorney Committed to providing excellent legal services! Reporting Period July 1, 2011 June 30,

3 Table of Contents Message from the City Attorney... 1 Objective... 3 Overview... 4 Budget... 5 Attorney Organizational Chart... 6 Client Work Statistics... 7 Number of Matters Handled Per Client... 8 Litigation Summary... 9 Civil Litigation and Appeals...10 Civil Rights...11 Constitutional Challenges...12 Torts...13 Land Use and Code Enforcement...15 Unsafe Structures...17 Collections and Significant Settlements...17 Labor and Employment...18 Civil Service Board...21 Workers Compensation...22 Quality of Life and Land Use...23 Contracts and Procurement...25 General Government and Public Safety...26 Internship & Legal Corps Program...28 Reporting Period July 1, 2011 June 30,

4 Objective Mission To provide the highest quality legal services while ethically and zealously representing all stakeholders in the City of Miami Vision To create a strong public service ethic in a new generation of lawyers who are highly skilled, competent and committed to excellence in the practice of municipal law. Goals Continue to develop a succession plan for the Office of the City Attorney by innovative systems of organization and mentoring. Refine the successful collections program for fees, liens and debts due to the City. Continue intense involvement in state legislative initiatives impacting the City. Reporting Period July 1, 2011 June 30,

5 Overview The City Attorney leads the in-house legal department of the City of Miami and supervises the services of all attorneys employed by the City and its agencies. The City Attorney is a charter officer of the City, responsible for all legal matters related to the City s municipal government and corporate affairs. During this reporting period, the Office of the City Attorney performed legal services essential to support the operations and functions of all City departments, and completed commercial and financial legal transactions related to the administration of approximately 4,000 employees and an operating budget of more than $534 million. Significant legal services were provided to the City in the area of General Government which included drafting approximately 80 ordinances, of which 53 were adopted and 425 resolutions, of which 402 were enacted by the City Commission along with approximately 990 contracts. Additionally, the City Attorney issues formal and informal written legal opinions informing and updating the City Commission and the Administration on federal, state and local laws. The City Attorney and staff attorneys also provide legal representation and advice at all meetings of the City Commission and to approximately 38 city Authorities, Boards and Committees. The City Attorney continues to meet regularly with members of the City Commission, the Mayor, the City Manager and other City officials and department directors to advise and counsel them on legal issues pertaining to their official duties. All formal written Legal Opinions issued by this Office from 2003 through the current date may be found on the Office of the City Attorney s website at - by clicking on City Attorney Opinions. Approximately 2,857 matters were opened during the reporting period. This number includes all matters received pursuant to Legal Services Requests, lawsuits, appeals, grievances, litigated workers compensation claims, civil service cases and claims filed against or by the City. Of the 110 new civil litigation cases, 32 new appeals, 19 new labor grievances, and 31 new Civil Service Board cases, only eight (8) matters required outsourcing because of conflict or legal specialty. In-house attorneys assigned to the Civil Litigation and Appeals, the Labor and the Land Use Sections are counsel of record for all of the remaining new litigated matters. This year, the Office of the City Attorney was tasked with the collection of outstanding Unsafe Structure Liens and received and reviewed numerous files from the Administration and made determinations whether liens were properly recorded, valid and enforceable. The Office of the City Attorney sent letters to the owners of record of the properties with collectible liens demanding payment of the lien, and forewarning of legal action to foreclose the lien, if it was not paid. During the month of May and June of 2012, the total amount collected from the owners of the properties for outstanding liens totaled $30, Reporting Period July 1, 2011 June 30,

6 Budget The adopted budget for FY for the Office of the City Attorney is $4,420,000 for operations and personnel expenses. During this fiscal year, four (4) positions were abolished, - two (2) attorney positions and two (2) support staff positions - resulting in a total salary savings of $233,000. The number of attorneys along with support staff has decreased by a combination of budget cuts and attrition from 62 employees in 2008 to 41 employees in which represents a 34% decrease in the last four years. The reduction in the number of staff attorneys and support personnel, mainly due to budgetary constraints, has necessitated greater individual workloads and longer office hours for each professional employee. Notwithstanding the reduction in staff, commitment and dedication to excellence has not wavered. Noteworthy recognition must be given for the outstanding work of the support staff. They continue to provide efficient, effective and competent support services. As of the date of this report, the office is staffed by 41 full time employees. This includes twenty-one (21) attorneys, four (4) administrative staff, ten (10) litigation assistants, one (1) paralegal and five (5) legal services staff. Reporting Period July 1, 2011 June 30,

7 Attorney Organizational Chart Reporting Period July 1, 2011 June 30,

8 Client Work Statistics City Officials, departments and City Agencies and Boards (our Clients ) obtain legal services by completing a Legal Services Request (LSR) form. Once the form is received, the information is entered into a tracking system and assigned to an attorney by one of the Deputy City Attorneys. In addition to the issuance of a matter identification number, an area of law is assigned. Currently there are five (5) Areas of Law: Litigation and Appellate Practice: - in this area included are all lawsuits in the practice areas of (101) Torts, (101cb) Torts Claims Bills, (101s) Subrogation, (102) Civil Rights, (103) Commercial, (104) Land Use, (105) Special Assessment, (106) Labor/Employment, (107) Public Records- Sunshine-Election, (108) Workers Compensation, etc. Transactional includes all contracts in the areas of (201) Professional Service Agreements, Expert Consultant, Use Maintenance, Affordable Housing, etc., (202) Procurement Issues, (203) Development Projects (204) Real Property, (205) Public Finance. Land Use and Environmental Law includes all non-litigation matters (301) Comprehensive Plan and Permits, (302) Special Assessments and Impact Fees (303) Land Use and Zoning. Employment and Labor - includes all non-litigation matters (401) Employment, (402) Labor. General Government includes the remaining practice areas (501) Legislation, (502) Garnishments (503) Third Party Subpoenas, (504) Advice and Counsel. The tracking system assists in the management of all matters where legal advice is required and provides the data necessary to facilitate analysis and reporting updates. The attorneys and paralegal enter and track time worked on each individual matter. If the City prevails on a litigation matter, the attorney(s) can file a Motion to Tax Costs and the City may be reimbursed for the attorneys and paralegal time. Also, any requestor can be informed as to the amount of time consumed for legal services on a particular request. Reporting Period July 1, 2011 June 30,

9 Number of Matters Handled Per Client Reporting Period July 1, 2011 June 30,

10 Litigation Summary Lawsuits* Appeals Grievances Reporting Period: 7/01/11 6/30/12 New Lawsuits 110 Total Lawsuits Tried 13 Trial Wins 10 Trial Losses 3 Summary Judgments 15 Dismissals 37 Settlements 67 New Appeals 32 Total Appeals Resolved 48 Unemployment Comp Appeal Wins 25 Appeal Losses 16 New Grievances 19 Grievances Resolved 26 New Unemployment 4 Unemployment Resolved 5 Workers Compensation (WC) Civil Service (CS) New WC Claims 34 WC Adjudicated 3 WC Settled 22 WC Dismissed 7 New CS Cases 31 CS Settled 12 CS Adjudicated 27 * This report includes workers compensation litigation, grievances and arbitrations, civil service matters, unemployment and discrimination claims. It excludes garnishments, quiet title actions, and foreclosures in which the City defends its interest and excludes individual code enforcement matters. Reporting Period July 1, 2011 June 30,

11 Civil Litigation and Appeals The attorneys assigned to this practice area defend the City and its various agencies, departments, officers, agents, employees and elected officials in lawsuits filed in federal and state courts. The bulk of the litigation cases involve personal injury, property damage, auto negligence, premises liability, breach of contract, false arrests, battery, malicious prosecution, and violations of civil rights. The land use and labor and employment disputes are assigned to the attorneys with expertise in those respective sections. In addition, staff attorneys litigate real estate, including foreclosure and quiet title actions, public purchasing protests, and public records cases. This practice area also pursues affirmative litigation which seeks to recover money for breach of contract, damages to City property, and collection of various debts or financial obligations owed to the City. The land use litigators handle eminent domain litigation, injunctions to prevent nuisances and violations of City Codes. This Office is currently handling 1,583 cases on behalf of the City in the area of real estate litigation, which includes foreclosure, and quiet title actions. As the real estate market struggles, the City continues to be named in an unprecedented number of foreclosure and quiet title cases. The City may be either a plaintiff filing an action to collect its money or a defendant to protect the City s interest. In spite of the economic downturn, staff attorneys successfully collected $105,760 in foreclosure or quiet title matters during this reporting period. Moreover, this year the City is aggressively intervening in foreclosure cases in order to protect the City s interests. Reporting Period July 1, 2011 June 30,

12 Some of the more significant matters litigated during this reporting period are summarized in the following pages by practice area. Civil Rights DEFENSE VERDICT OBTAINED IN CIVIL RIGHTS ACTION Eutiquio Eloy v. Officer Jean Paul Guillot USDC Case No.: CIV-King Plaintiff claimed that he was falsely arrested for disorderly intoxication, and other misdemeanors, which arrest resulted in the revocation of his bond on the unrelated charges. He remained incarcerated until his ultimate conviction in the unrelated case. In his initial complaint, he requested damages totaling $200,000 against the arresting officer. The jury found the officer did not intentionally commit acts that violated Plaintiff s federal constitutional right not to be arrested or seized without probable cause. SUMMARY JUDGMENT GRANTED TO CITY AND OFFICER IN ALLEGED EXCESSIVE USE OF FORCE CASE Tairen Olandis Gage, a/k/a Taren Olandis Gage v. Sgt. Laurenceau, The City of Miami Police Department USDC Case No.: Civ-Hoeveler Plaintiff alleged when he was approached by the police as a suspect of a burglary, he was told to "get on the ground now or I'll shoot you." Rather than comply, he fled and jumped an eight foot fence while being chased by police, but then surrendered and was handcuffed. He alleges that he was then pushed to the ground and seriously injured. The court ruled that the officers were entitled to use force until the offender was secured, and that, at most, the use of force was de minimus. POLICE CASE SETTLED FOR DE MINIMUS SUM Vincent Post v. City of Miami Police Department, USDC Case No.: Civ-Altonago Plaintiff, said he was falsely arrested and a victim of excessive use of force by police. He sought damages of $82,534 when the charges were dropped stating that his civil rights were violated and said the City failed to supervise and train its officers. He further claimed that, as a result of the arrest, he was terminated from his position with Great Florida Bank, a position in which he was earning a base salary of $225,000. The City obtained the security video from the Mutiny Hotel which showed the circumstances surrounding Plaintiff's arrest for aggravated assault against an elderly 64 year old woman and also determined that Plaintiff previously filed an age discrimination lawsuit against Great Florida Bank as a result of his termination. In that lawsuit, plaintiff testified that it was a case of mistaken identity; that he was not the person shown on the security video - a contradiction in his testimony. Faced with a motion to strike his pleadings, the case was settled for $500. Reporting Period July 1, 2011 June 30,

13 APPELLANT S CLAIMS TIME-BARRED Timothy Sneed v. Pan American Hospital, Dr. Raul Hernandez, Det. Rolando Garcia, Det. Orlando Villaverde, City of Miami Police Department, City of Miami Mayor Manuel (Manny) Diaz USDC 11th Circuit, Case No.: Plaintiff went to a hospital after being grazed by a bullet fired from a gun. But when the police responded to the hospital, he refused to speak with them. He was tried and eventually was convicted of 2nd degree murder. He alleged a violation of his constitutional rights under both federal and state law, because he said the police wrongfully used his medical records to support the prosecution. The Court dismissed the case finding that the plaintiff had no standing to bring an action under the Health Insurance Portability and Accountability Act ("HIPPA") and because the claim was time barred. Constitutional Challenges CLASS ACTION INVOLVING MULTIPLE CITIES DISMISSED Michael C. Addison and Richard T. Petitt, for themselves and all others similarly situated v. City of Tampa, Florida, individually, and as representatives of all other Florida municipalities similarly situated, Florida Court of Appeal, Second District, Case No.: 2D In 2003, Plaintiffs sued several cities who imposed occupational license taxes upon attorneys, claiming the tax was unconstitutional and seeking a refund of the taxes paid for the period four (4) years prior to the filing of their suit in 2003, until judgment. On motions to dismiss filed by the City of Miami and Miami-Dade County in 2003, the Hillsborough County Circuit Court dismissed the City of Miami and Miami-Dade County on the basis of home venue privilege. But because of a class certification ruling, the City of Miami and Miami-Dade County remained as defendant class members in the case. Ultimately, the Hillsborough County Circuit Court dismissed all non-hillsborough County defendant class members on the basis of home venue privilege. It also specifically rejected the Plaintiffs' theory of a class action exception to the home venue privilege which was upheld on appeal. Reporting Period July 1, 2011 June 30,

14 WRONGFUL DEATH ACTION OF THE ESTATE OF A DECEASED MINOR SETTLED EQUITIBLY Yanet Leyva vs. Palmenia Alfonso, et al v. City of Miami Miami-Dade Circuit Court, Case No.: CA 08 This wrongful death action was brought on behalf of a deceased minor 11- year-old girl, who was crossing Flagler Street when she was struck by a car at a crosswalk attended by two City of Miami school crossing guards. The City was sued along with the driver and the School Board and Miami Dade County alleging its crossing guards were negligent in performing their duties. All parties moved for summary judgment and the motions were denied. This matter was settled as the case was going to trial with all parties as follows: $24,999 from the City, $25,000 from the School Board, and $12,500 from Miami-Dade County. The driver and the owner of the vehicle failed to answer the complaint. PLAINTIFF FAILS TO OBTAIN VERDICT HIGHER THAN CITY'S OFFER OF SETTLEMENT IN FALSE ARREST CASE ENTITLING CITY TO ATTORNEY'S FEES Bienvenido Quintana v. City of Miami Miami-Dade Circuit Court, Case No.: CA 11 Plaintiff claimed he was falsely arrested without probable cause, for loitering and prowling. He was detained for less than one hour but spent no time in jail. The criminal court dismissed the criminal charges and Plaintiff sought damages for Torts mental pain and suffering, loss of dignity, pride, reputation, self-confidence, embarrassment, costs and attorney's fees, and demanded up to $75,000. The City offered $4,500 in an offer of settlement. At trial the Plaintiff obtained $1,000, which entitled the City to seek its attorney s fees. BALANCED SETTLEMENT ARRISING FROM WATERCRAFT ACCIDENT Richard S. Sol v. City of Miami and Fireman's Fund Insurance Company, USDC Case No.: Civ-Hoeveler Plaintiff said he was a passenger on a boat returning to the Grove Harbor Marina, when another vessel, operated by Miami Marine Patrol collided with the vessel where he was a passenger, resulting in severe bodily injury. He sued the City under federal maritime laws, which have no sovereign immunity limitation. The insurance of the vessel paid $1.85 million, obtaining a release of all parties, including the City and the Marine Patrol Officer and asserted a contribution and indemnity claim against the City and the Marine Patrol Officer which claim was dismissed. The case was consolidated with another action, and subsequently settled with a payment of $425,000 by the City to the insured. Reporting Period July 1, 2011 June 30,

15 SUCCESSFUL DEFENSE CAUSES SETTLEMENT ON DAY OF TRIAL Joseph Williams v. Florida Power & Light Company and City of Miami, Miami-Dade Circuit Court, Case No.: CA 05 Plaintiff was seated on a bus bench on NW 17th Avenue, near 46th Street, when an overhead power line fell, causing him to jump or fall into the street, where he was struck, and his foot was run over, by a City of Miami Solid Waste trash truck. The accident resulted in a serious injury to Plaintiff's foot, such that a complete belowthe knee amputation was required. Two weeks prior to trial, FP&L settled with the Plaintiff for a confidential sum between $850,000 and $1,000,000. The City's maximum exposure was $100,000 and on the morning of trial, the Plaintiff settled with the City for $11,000. Reporting Period July 1, 2011 June 30,

16 Land Use and Code Enforcement CITY COMMISSION DECISION CONCERNING CHARTER SCHOOL IN BRICKELL AREA UPHELD Barim at Brickell, LLC, Westerbri Group, LLC. v. City of Miami and 1701 Brickell Condominium, LLC. Miami-Dade Circuit Court, Appellate Division, Case No.: AP The applicants sought a special exception to permit development of a 1,700 student K-12 charter school, and construction of a 7-story building with a parking garage across the street. The Zoning Board approved the application, but, the City Commission reversed the Zoning Board s decision and denied the special exception on an appeal by a neighboring condominium association. The Applicants challenged the decision but the Court upheld the City Commissions action. APPELLATE DIVISION AFFIRMS FINAL ADMINISTRATIVE ENFORCEMENT ORDER Coconut Grove Playhouse, LLC. v. The City of Miami Miami-Dade Circuit Court, Appellate Division, Case No.: AP The Code Enforcement Board found that the Coconut Grove Playhouse "parking lot was not conforming with off-street parking guides and standards." The property owner appealed to the Circuit Court's Appellate Division and after the submission of supplemental briefs, the Court affirmed the Final Administrative Enforcement Order determining that a violation existed. CITY PREVAILS ON SUMMARY JUDGMENT - MIAMI ART MUSEUM City of Miami v. Miami Neighborhoods United and Elvis Cruz Miami-Dade Circuit Court, Case No.: CA 11 Plaintiffs, Miami Neighborhoods United and an individual citizen, challenged the Miami Art Museum component of the Museum Park Project alleging a violation of the City Charter and that the Major Use Special Permit (MUSP) granted by the City Commission, for the Miami Art Museum Project is not consistent with the City's Comprehensive Plan. After arguments and briefs the Court ruled in favor of the City and the Museum. RESTAURANT OWNER RETAINS SPECIAL EXCEPTION Moheb, Inc., d/b/a Mr. Moe s vs. City of Miami, Miami-Dade Circuit Court, Case No.: CA 24 The Plaintiff, a restaurant, alleged that the City Code permitted it to sell alcohol until 5:00 a.m. because it had a special exception to operate as a supper club. In 2008, the City amended its Code to stop the sale of alcohol in Coconut Grove at 3:00 a.m. Plaintiff alleged it had a property right in the special exception and that it survived the ordinance s amendment. In addition, Plaintiff alleged it lost more than $1 million in revenue because of the reduction in hours for alcohol sales. The parties reached an agreement to settle this claim in the amount of $10,000 with the provision that Plaintiff would be allowed to sell alcohol as permitted prior to the 2008 amendment to the City s ordinance. Reporting Period July 1, 2011 June 30,

17 CODE ENFORCEMENT BOARD ORDER FINDING FINNEGANS IN VIOLATION OF NOISE ORDINANCE AFFIRMED Ocean Drive Clevelander, Inc. v. City of Miami Miami-Dade Circuit Court, Appellate Division, Case No.: AP Finnegans, was cited for "loud noises emanating from its property in violation of the City Code. The Special Master entered an Order finding that the property owner violated the noise ordinance, and imposed a $100 per diem fine and $150 in prosecution costs. On appeal, the Appellate Division affirmed the decision of the Special Master. INJUNCTION AGAINST CITY TO STOP DEMOLITION OF A PROPERTY IS DISMISSED Ken Pierce v. City of Miami, Miami-Dade Circuit Court, Case No.: CA 11 Plaintiff claimed that the City issued a demolition notification because of a history of violations on the property, not due to any current violations and sought to enjoin the City from demolishing the property. The motion for injunction was denied and the matter dismissed, allowing for demolition of the structure. PETITION DENIED IN FAVOR OF THE CITY Power U Center for Social Change, Inc., et al. v. Miami City Commission and City of Miami CRA, Miami-Dade Circuit Court, Appellate Division, Case No AP Plaintiffs challenged the City Commission approval of a MUSP for the "Sawyer's Walk/Crosswinds Project," a story mixed use project alleging that improper communications occurred between Commissioners and CRA staff, the MUSP did not comply with Florida law and the Major Use Special Permit (MUSP) did not comply with the CRA's housing policy as set aside for low income families. The Appellate Division of the Circuit Court denied the Petition without opinion thereby upholding the City Commission actions. CITY COMMISSION'S DENIAL OF EXCEPTION TO LITTLE RIVER CLUB TO USE RESIDENTIAL LOTS BEHIND BUSINESS FOR COMMERCIAL PARKING The Little River Club, Inc. v City of Miami Miami-Dade Circuit Court, Case No.: AP & AP Plaintiffs sought to continue to use the rear portion of its property as a parking lot contrary to that which is allowed in the City's Zoning Ordinance. Approval was denied by the City Commission and Plaintiffs, alleging vested rights, contended that the City regulations do not require the Club to secure public hearing approval because the City improperly classified the Club's prior conditional use permit, obtained under a previous Zoning Ordinance. The Court ruled that the City Commission did not depart from the essential requirements of law in determining that the Club was not entitled to use the parking lot as a right. Reporting Period July 1, 2011 June 30,

18 Unsafe Structures The Office of the City Attorney has reviewed more than a hundred files provided by the Building Department for legal sufficiency with regard to unsafe structures to facilitate demolition of those properties. Proper service was obtained on hundreds of individuals and corporations resulting in settlements of lien claims and also the successful demolition of more than fifty-three structures. Collections and Significant Settlements CITY REIMBURSED $26, BY STATE OF FLORIDA, SPECIAL DISABILITY TRUST FUND Fernando Acosta v. City of Miami, Special Disability Trust Fund, Claim No.: 0289S The State of Florida reimbursed the City $26, because an injured worker had a preexisting permanent impairment, which caused the City to incur liability for excess compensation. Reimbursement was made because the City hired the worker even though the City knew that the worker suffered from a preexisting permanent impairment. CITY RECOVERS $21, In the Matter of Catina Anderson Matter ID No The Claimant sustained personal injuries in a car accident for which required medical services, and caused a loss of wages. She received a net recovery of $83, from the third party who was responsible for the accident. The City received $21,645 out of the Claimant s recovery and maintains an 8% lien on all future medical and indemnity benefits up to the amount of her net recovery. SETTLEMENT IN TELE- COMMUNICATIONS CASE Sprint-Spectrum L.P., d/b/a Sprint PCS v. City of Miami and Miami- Dade County, Miami-Dade Circuit Court, Case No.: CA 01 Plaintiff alleged that during a three (3) year period, it overpaid the City of Miami Public Service Tax, and underpaid Miami Dade County, in the amount of $2,052,933. By cross-claim, the County sought to recover the money from the City based on a constructive trust theory. During the pendency of the litigation, Sprint was unilaterally deducting a portion of tax due the City and paying it directly to the County, prompting the City to file suit against Sprint to refund the money. Sprint's unilateral deductions over time amounted to $1,665,313, leaving an unsatisfied difference of $387,620. After intense discovery and negotiations, the two cases were settled by Sprint agreeing to pay the County $194,000, the City agreeing to pay Sprint $97,000, and the County agreeing to compromise its claim by $193,620. Reporting Period July 1, 2011 June 30,

19 Labor and Employment This practice area relates to the City s role as the employer of approximately 4000 union and non-union workers, including all litigation in state and federal court in connection with discipline, discharge, and promotions. The Office of the City Attorney also advises management on labor relations issues, and on compliance with state and federal labor laws. The Office of the City Attorney collaborates with special outside labor counsel regarding the unionized workforce in matters involving collective bargaining, union contract administration and grievances. Attorneys assigned to this area represented the City and its employment actions before the Civil Service Board, the Miami-Dade County Equal Employment Opportunity Board, the Public Employees Relations Commission, Department of Veterans Affairs, Department of Administrative Hearings, and Unemployment Compensation Appeals. Some of the significant matters handled by the Office of the City Attorney during this reporting period are: FINAL SUMMARY JUDGMENT GRANTED IN FAVOR OF CITY IN WHISTLEBLOWER ACTION Jose A. Acuna v. City of Miami Miami-Dade Circuit Court Case No.: CA 06 The Plaintiff, a state law whistleblower, alleged constructive discharge because he received a reprimand for violations of Departmental Orders and Civil Service Rules and Regulations and which informed him that the City intended to terminate his employment. Plaintiff pre-emptively signed retirement documents selecting a date certain for separation from employment, but on March 10, 2006, the Plaintiff resigned in order to preserve accrued sick leave, which he would have forfeited had he been terminated. On summary judgment, the Court agreed with the City that the Plaintiff was not terminated, but rather voluntarily resigned and that his resignation was not a constructive discharge, nor was it the result of duress. CITY DISMISSED IN SUIT FOR LACK OF PROSECUTION BY PLAINITFF Michael J. Boudreaux v. City of Miami, Miami-Dade Circuit Court, Case No.: CA 09 Plaintiff, the former Budget Director, asserted a claim for violation of Florida's Public Sector Whistleblower Act, and sought reinstatement to his former position, compensation for lost wages, benefits and other lost remuneration, and all costs and attorneys fees. He did not request a Civil Service Rule 16 grievance hearing, a prerequisite to pursuing a whistleblower claim. Thus, the City moved for summary judgment. Prior to the summary judgment being heard, the Court on its own dismissed the action for lack of prosecution. Reporting Period July 1, 2011 June 30,

20 CITY GRANTED DIRECTED VERDICT FOLLOWING JURY TRIAL Kathy Daegling v. City of Miami Miami-Dade Circuit Court, Case No.: CA 02 Plaintiff alleged multiple torts, discrimination, retaliation and Florida s Public Sector Whistleblower claims against the City and two (2) individual co-workers. She claimed that she was denied a promotion to NET Administrator. She sought compensatory damages and retroactive promotion with all back pay and emoluments. The employment claims were tried in September of 2009 and on her whistleblower claim, no damages were awarded. But, on the discrimination claim, the Plaintiff was awarded $320,000, and on the retaliation claim she was awarded $180,000. The Court then granted the City s motion for new trial, which determination was upheld on appeal. The Court then agreed with the City s Motion for Summary Judgment on the discrimination claim, and after a second trial by jury, granted a directed verdict on the retaliation claim. CIRCUIT APPELLATE DIVISION AFFIRMS CITY COMMISSION'S DECISION TO TERMINATE THE CHIEF OF POLICE Miguel A. Exposito v. City of Miami Miami-Dade Circuit Court, Appellate Division, Case No.: AP The former Chief of Police alleged that the decision of the City Commission upholding his termination and removing him from the Office of Chief of Police, was not based on substantial competent evidence, denied him procedural due process, departed from the essential requirements of law, and should be reversed. The appellate court ruled that by reassigning command staff officers in contravention of the Manager's instruction to "maintain the status quo", the Chief acted in direct contravention to the Manager's instruction and, therefore, the Commission's decision to affirm the termination of the Chief complied with the essential requirement of law and the Chief was not denied due process by the Commission. The Court in denying the Chief s petitions affirmed the City Commission actions. PERC DISMISSES FOP's UNFAIR LABOR PRACTICE CHARGE CONCERNING F.S , F.S. Walter E. Headley, Jr. Miami Lodge #20, Fraternal Order of Police, Inc. v. City of Miami Public Employees Relations Commission, Case No.: CA The Police Union contends that the financial urgency statute may be invoked only to modify the terms of an existing agreement and that when the City advised PERC that it had engaged in contract negotiations because of the financial urgency, the City unilaterally altered the terms and conditions of employment before reaching impasse with the FOP which was a violation of the statute. Further, the Union alleged that, although the changes were not discussed with them, the changes were discussed in a closed-door, unnoticed shade meeting conducted in violation of the law. The Union contended that the failure of the City to have any discussions with the Union on these matters constituted bad faith or surface bargaining in violation of the law. It also asserted that by unilaterally altering terms and conditions of employment before completion of the statutory impasse procedure and by not responding to a request for records, the City additionally violated all legal requirements. PERC in a two-to-one decision, with one dissent, denied the Union's exceptions and dismissed the Union's unfair labor practice charge. The Union has appealed to the district court of appeal. Reporting Period July 1, 2011 June 30,

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