OFFICE OF THE CITY ATTORNEY

Transcription

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,

21 COUNTY EQUAL OPPORTUNITY BOARD'S FINDING THAT CITY DISCRIMINATED BASED ON POLICE OFFICER'S DISABILITY REVERSED City of Miami v. Miguel A. Hervis Third District Court of Appeal, Case No.: 3D Claimant alleged discrimination by the City based on disability in a claim filed with the Miami-Dade County Equal Opportunity Board ("EOB"), now known as The Commission on Human Relations. The EOB ruled against the City. The City requested an evidentiary hearing, and the EOB again ruled in favor of the Claimant. The City appealed to Circuit Court Appellate Division arguing that Claimant failed to prove that the reasons for the City not promoting him to the position of commander were a pretext for discrimination. The Circuit Court Appellate Division per curiam affirmed the decision of EOB. The City sought review before the 3 rd District Court of Appeals (3 rd DCA) which found in favor of the City. SUCCESSFUL DEFENSE OF TERMINATION DECISION BY DOSP Luis Lozano v. Miami Parking Authority, a/k/a Department of Off- Street Parking of the City of Miami, USDC Case No.: Civ-Huck Plaintiff alleges that he was employed by DOSP as a Parking Facility Supervisor, until he was terminated and alleges that he was not an exempt employee, that he worked in excess of 40 hours per week for 134 weeks, but was not paid overtime for all work performed above 40 hours. He complained to his employer about the problem, but it was not remedied. He also alleges a hostile and objectively offensive work environment due to sexual encounters between supervisors and employees that occurred on his job premises in parked vehicles during work hours. The FSLA claim for overtime hours was settled early on in the litigation in the amount of $12,000 inclusive of attorney s fees and costs. On the Title VII claim, alleging sexual harassment/hostile work environment and retaliation, DOSP moved for summary judgment. The Court ruled that the isolated incidents were too insignificant to allow a reasonable inference that plaintiff suffered an objectively hostile work environment." Further, on the retaliation claim, the Court ruled that Plaintiff failed to establish a claim for retaliatory discharge, because what the plaintiff reported to HR was that there were "rumors and gossip among employees". Accordingly summary judgment was entered in favor of DOSP. CITY'S ACTIONS DEEMED COMPLIANT WITH STATUTE Miami Association of Firefighters, Local 587, of the International Association of Firefighters of Miami, Florida v. City of Miami Public Employees Relations Commission, Case No.: CA The Firefighters Union alleged in exchange for concessions by the Union, the agreement it had with the City was extended and that the City expressly waived its right to cease funding in any year of the agreement except in the case of true fiscal emergency. The Union further alleged that less than six months after agreeing to the extension, the City, under the law financial urgency, unilaterally took action to modify wages, insurance and pension benefits. The Union asserted that the City s action was improper. The Union charges that an unnoticed shade meeting held was in violation of the open meeting statute. The Union asserted that the City failed to bargain collectively and in good faith by not providing the Union with notice in Reporting Period July 1, 2011 June 30,

22 advance, of imposing changes in the agreement. The Union sought reinstatement of all benefits (pension and wages) modified by the City Commission. The Public Employee Relations Commission ("PERC") found the City was in compliance with the law and dismissed the unfair labor practice charge. DISMISSAL OF UNION'S CONSTITUTIONAL AND SUNSHINE CLAIMS AFFIRMED Miami Association of Firefighters Local 587 of the International Association of Firefighters, of Miami, Florida Third District Court of Appeal, Case No.: 3D The Firefighters Union challenged the City s unilateral modification of wages, insurance, and pension benefits, as not permissible and further alleged that the City took hostile legislative actions as a result of a Civil Service Board "shade" or "executive session" that failed to comply with the Sunshine Law. The Union claims the actions of the City constituted an abridgement of the right to collectively bargain in violation of the Florida Constitution and impaired the members' contract rights. The Circuit Court dismissed the action based on preemption to the Public Employees Relations Commission ("PERC"), which dismissal was upheld by the Appellate Court holding that, irrespective of the IAFF's constitutional and statutory claims, the IAFF was required to exhaust its administrative remedies, and PERC has jurisdiction in the first instance to adjudicate the allegations of constitutional rights and statutory violations complained of. The attorneys in the Labor and Employment section represent management before the Civil Service Board. They have successfully assisted management in upholding disciplinary action taken in the workplace by presenting the supporting evidence and argument convincing the Civil Service Board that the City s actions were correct. In the matter of Olantunbosun ( Ola )Aluko, Civil Service Board, Case No I The former Director of Capital Improvement Programs, filed a Rule 16 grievance with the Civil Service Board alleging that his termination in was in retaliation for his participation in an investigation of employees accused a receiving kickbacks. The parties entered into a settlement agreement paying Mr. Aluko $20,000. In exchange, Mr. Aluko executed a full release. In the matter of Ansonia Chatfield, Civil Service Board, Case No.: 11-26D An Emergency Dispatcher was terminated because she repeatedly refused to follow a Police Sergeant s direct order to cancel a motorcycle chase and for making offensive comments directed to her supervisors. After hearings on three separate days, the Civil Service Board found her guilty of insubordination, disgraceful conduct, loss and injury to the City. Final Judgment sustaining the termination was issued. Reporting Period July 1, 2011 June 30,

23 In the matter of Jeffrey Locke, Civil Service Board, Case No D Workers Compensation A police Lieutenant received a twenty (20) hour suspension for submitting multiple overtime slips for duplicative work. The Civil Service Board found him guilty of neglect and inattention to duty judgment sustaining the twenty (20) hour suspension was issued. During this reporting period the Workers Compensation Section continued to build on this Office s past successes in workers compensation. By continuing the team approach between Gallagher-Bassett Services, the City s claims adjusters, and the Department of Risk Management, excellent results and the issue reported below were achieved. One of the significant matters handled by the Workers Compensation Section during this reporting period is: SERIOUSLY INJURED OFF-DUTY POLICE OFFICER DENIED WORKERS COMPENSATION BENEFITS FOLLOWING AUTO ACCIDENT Rolando Rodriguez v. City of Miami Office of the Judge of Compensation Claims, Case No.: CMH The claimant was a police officer for the City of Miami who alleged he was injured on-the-job when he lost control of his Cityissued police motor vehicle and struck a pole in the early morning hours, on the second of his three days off, while not on official business, and while outside the jurisdictional limits of the City of Miami. The claimant asserted that, while he understood that he was in violation of various Departmental Orders, he believed he was thrust into his duties when he observed a vehicle speed past him on a state road. He admits that he never mentioned the existence of the vehicle to anyone until he filed a Petition for Benefits and he presented no corroborating evidence on the existence of the other vehicle. The entire claim was denied by the City because the incident was not in the course and scope of his employment; and the actions were in violation of Departmental Orders. The Judge of Compensation Claims ruled in favor of the City of Miami, finding that the accident did not arise out of the course and scope of the officer s employment. Reporting Period July 1, 2011 June 30,

24 Quality of Life and Land Use In the area of Quality of Life and Land Use, this Office deals with many areas of law, such as zoning, land use, building, subdivision regulation, plats, sustainable initiatives, solid waste, and community development, just to name a few. This Office reviewed more than 20 plats this reporting period. Of particular sensitivity to Commissioners and the community are Code Enforcement, Solid Waste, Sustainable Initiatives, demolition issues, and Community Development. This Office handled several notable cases in the area of Code Enforcement. The Office of the City Attorney prosecuted in excess of 500 cases which addressed Code violations such as illegal construction, tree removal, illegally maintaining or depositing junk or trash, graffiti, failure of a business to have the appropriate certificate of use or business tax receipt, and violations pertaining to vacant, blighted, unsecured, or abandoned structures. Some of these cases required circuit court appearances, including: Brickell Flatiron v. City of Miami, Miami-Dade Circuit Court, Case No CA 06 The Plaintiff, property owner, brought suit seeking declaratory and injunctive relief to prohibit the City from enforcing any rights pursuant to two Code Enforcement Board Orders finding the property guilty of certain Code and Zoning violations. Plaintiff alleges that he was not afforded proper notice and was thus denied due process. The parties entered into a settlement whereby the underlying violations would be complied with no later than October 31, 2012 and the City collected $45,000 in satisfaction of the pending fines. Metro Parking vs. City of Miami, Miami- Dade Circuit Court, Case No CA 02 The Plaintiff, a parking lot operator, was issued a certificate of use (CU) and interim parking permit (IPP) with the condition that all code violations and liens on the property be satisfied within 30 days. Plaintiff failed to do so, which caused the City to revoke Plaintiff's CU and IPP, thus prohibiting the operation of Plaintiff's business. Plaintiff then filed suit, seeking an emergency temporary injunction to prevent the City from enforcing the conditions of the CU and IPP and allowing Plaintiff's business to resume operating. The Court denied injunctive relief and thereafter, the Plaintiff entered into a settlement with the City and dismissed its Complaint with prejudice. Reporting Period July 1, 2011 June 30,

25 In the area of Solid Waste, this Office handled several important issues including collecting unpaid franchise fees from General Hauling Services in the amount of $36, The office reviewed in excess of 39 Sustainable Initiative grants and entered into an agreement with the Town of Cutler Bay under the Property Assessment Clean Energy Act (PACE) and several other municipalities to create a special district known as the PACE District which provides financing to participating properties wishing to install green improvements. The District would have the authority to levy special assessment liens against properties in the event of default. Our Office reviewed and revised the interlocal agreement to protect the City from any liability arising from the creation and operation of the PACE District. In the areas of Building, this Office assisted in obtaining a free mortgage information system from Wells Fargo Bank to enable the City to access mortgage information for distressed properties, which was part of Operation Clean Sweep to open lines of communication with banks for the repair of unsafe structures. The Office of the City Attorney drafted, closed and reviewed loan and security agreements for various complex real estate transactions as it relates to Affordable Housing totaling $7,422,667 in loan funds and thereby increasing the supply of affordable housing by 147 units. Projects that closed this reporting period are: The Carver Apartments & Shoppes; Park View Apartments II; Park View Apartments II; Edificio Pineiro; New Life Apartments and Vista 12 Apartments. Reporting Period July 1, 2011 June 30,

26 Contracts and Procurement The work in this practice area touches upon all aspects of financial, commercial and contractual transactions undertaken by the City. In this reporting period, approximately 990 contracts were reviewed by this Office totaling approximately $343,680,090 in valuation. In the area of public procurement and purchasing, the decline in actual bid protests filed before the City Commission continued due to the effective counsel offered by this Office. The Purchasing Director, with substantial legal advice from this Office, has reduced bid protests taken before the City Commission with the issuance of protest denials supported by cogent and compelling analysis. Moreover, significant legal services were provided in the procurement of innovative services notably, the approval of sophisticated agreements and miscellaneous contracts for the provision of goods and services to the City including: 1. Second Amendment to the Settlement Agreement with Clearchannel Communications, which will provide the City a minimum annual revenue of $210K; and 2. License Agreement with Clearchannel Communications, which will provide the City a minimum annual revenue of $80K. Moreover, this office has continued to assist with the negotiations in several major projects such as the Baseball Stadium Parking Facilities Project, the Heliport Project, and the Museum Park Project, and the Partial Modification of deed restrictions for Watson Island. This office also assisted with the amendment to the Assumption of the Loan Guarantee Assistance Liability and Pledge Agreement regarding Parrot Jungle. Reporting Period July 1, 2011 June 30,

27 General Government & Public Safety During this reporting period the City experienced many transitions in upper management staff. Consequently, the Office of the City Attorney, through its Attorneys, Legislative Section, and Administrative Staff, assisted the new personnel by providing guidance and advice on all aspects of municipal governance including compliance with open government and conflict of interest regulations. This Office has worked closely with the elected officials and administration in the preparation of legislation adopted by the City Commission and implemented by the administration during the reporting period. Amongst the policy objectives accomplished thereby are included: creation of a special events district for pedicab operations; establishment of an unsafe structure panel for the City of Miami; creation of specialty districts for purposes of regulating the sale of alcoholic beverages; regulation of signage on public buildings; establishment of requirements for the placement of changing stations (baby) in the City s public restrooms; amendments to the no-panhandling ordinance to include additional areas within the urban core, including areas around the American Airlines Arena; authorization for trash can donations to the City; modifications to the Planning, Zoning and Building fees; modifications to the ordinance relating to parking waiver payments in the Coconut Grove area; modifications to the Marine Stadium fee schedule to be more in line with fees charged by other municipalities for certain uses of similar areas; regulation of controlled excavations, filling of such sites, and greening of demolition sites; operation of a trolley system throughout various City neighborhoods; authorization of agreements with non-profit entities that will assist in the preservation and development of significant city assets such as the Marine Stadium and Olympia Theater at the Gusman Center for the Performing Arts; adoption of two Special Area Plans that will allow for the development of a major mixed-use commercial and residential facilities in both the downtown area and the design district area; development of the heliport on Watson Island. Reporting Period July 1, 2011 June 30,

28 The Office of the City Attorney advised the Administration on public records matters, monitored sensitive matters and assisted the Administration with its Administration Policy on public records and departmental policies on use of social media by City employees. We have advised the City on the FPL Turkey Point Plant and Transmission Line expansion preserving the City s rights in this Administrative proceeding. Reporting Period July 1, 2011 June 30,

29 Internship & Legal Corps Program For the 9th consecutive year, the Office of the City Attorney has offered the unparalleled opportunity for second and third year law students to participate as interns within the Office. Students participate in the internship program during their Fall, Spring, and Summer semesters. The Office offers a highly competitive internship, with hundreds of applications each year. This program is viewed as a great opportunity to explore a career in the challenging practice of municipal law. Students gain excellent legal experience by working closely with experienced attorney supervisors on a variety of substantive legal matters in all of our areas of law. Students from the University of Miami, Florida International University, Florida Coastal University, NOVA Southeastern University, St. Thomas University, Florida State University, University of Florida, Stetson University, and other law schools outside of Florida, such as Emory, Columbia, University of Iowa, have interned in the Office of the City Attorney over the years. Students comply with their school s clinical program guidelines, while participating in a sophisticated internship program. During the reporting period more than 40 interns participated in this program. It is a great opportunity for the students and the City of Miami as a whole. This year, through this Office s constant search to provide the City of Miami with excellent legal services with limited legal resources, the Office of the City Attorney implemented a very successful legal consultant program through grants provided by the University of Miami School of Law Legal Corps Program. Attorneys who recently graduated from the University of Miami were paid by the University to work half a year in the Office. We engaged six talented attorneys, this reporting period, who provided free legal work to the City of Miami, for the benefit of the Office and the City as a whole. Reporting Period July 1, 2011 June 30,

30 CITY OF MIAMI Office of the City Attorney Miami Riverside Center 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130