Res No 024-13-13842RESOLUTION NO. 24-13-13842
A Resolution authorizing the City Manager to pay invoices of William J.
McGinnis in the amount of $10,402.24 for his services as arbitrator in the
case of Officer Carlos Rodriguez v. City of South Miami - Grievance
Arbitration.
WHEREAS, the City terminated Officer Carlos Rodriguez upon the recommendation of
the Chief of Police based on charges of insubordination and wrongful use of a controlled
substance; and
WHEREAS, the case was arbitrated pursuant to the terms of the City's contract with the
Police Benevolent Association; and
WHEREAS, the arbitrator found that there was no just cause for termination due to the
alleged use of steroids since it was the arbitrator's opinion that there was doubt as to the
reliability of the doctor's opinion; and
WHEREAS, the arbitrator found that Officer Rodriguez was insubordinate and that there
was just cause for a four month suspension without pay but that there was no just cause for
termination; and
WHEREAS, the City's contract with the Police Benevolent Association provides that
both sides are required to pay its share of the Arbitrator's fees.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. The City Manager is authorized to pay the Arbitrator, William J. McGinnis, a
sum not to exceed $10,402.24 for his services in the arbitration of Officer Carlos Rodriguez'
grievance to be charged to account 001 - 1500 - 514 -3410 with a current balance of
$178,706.101
Section 2. Severability. If any section clause, sentence, or phrase of this resolution is for
any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall
not affect the validity of the remaining portions of this resolution.
Section 3. Effective Date. This resolution shall become effective immediately upon
adoption by vote of the City Commission,
PASSED AND ADOPTED this 5'h day of February, 2013.
ATTEST: APPROVED:
Pagel of 2
Res. No. 24 -13 -13842
'ORM, COMMISSION VOTE:
Mayor Stoddard:
Vice Mayor Liebman:
Commissioner Newman:
Commissioner Harris:
Commissioner Welsh:
Page 2 of 2
5 -0
Yea
Yea
Yea
Yea
Yea
To:
Cc:
From
Date:
CITY OF SOUTH MIAMI
OFFICE OF THE CITY ATTORNEY
INTER- OFFICE MEMORANDUM
RAT I::D
i B 9 % %r
The Honorable Mayor, Vice Mayor and Members of the City Commission
Maria Menendez, City Clerk
Thomas F. Pepe, City Attorney
January 30, 2013
SUBJECT:
A Resolution authorizing the City Manager to pay invoices of William J. McGinnis in the
amount of $10,407.24 for his services as arbitrator in the case of Officer Carlos Rodriguez v.
City of South Miami - Grievance Arbitration,
SUMMARY OF FACTS SUPPORTING THE REOUEST:
The City terminated Officer Carlos Rodriguez in October of 2011 upon the
recommendation of the Chief of Police based on charges of insubordination and wrongful use of
a controlled substance (steroids). The case was scheduled, initially, for two days of arbitration to
commence on March 28, 2012, pursuant to the terms of the City's contract with the Police
Benevolent Association.
One of the City's two essential medical witnesses had a prearranged trip and the other
doctor merely claimed that he was too busy to leave his office and attend the arbitration.
However, neither doctor informed the City of any scheduling conflict until the City called the
doctors on March 20, 2012, to schedule a pre - arbitration conference.
A motion was filed, and eventually heard on March 22, 2012, to have the testimony of
the two doctors taken by deposition and to present the medical testimony by reading the
deposition
into evidence
at the arbitration hearing.
However,
on Friday, March 23,
2012, the
arbitrator's
decision was
transmitted and it denied
the motion
and refused to accept
deposition
testimony in lieu of live testimony. The doctors were advised that they could not be released
from the subpoena and were expected to appear at the arbitration on Wednesday, March 28,
2012.
The arbitration commenced on the morning of March 28, 2012, but after a half day of
testimony from other medical witnesses, the arbitration was continued due to the failure of the
two subpoenaed doctors to appear. The arbitration was rescheduled for April 11 -12, 2012 and,
due to the need for more time to complete the testimonial evidence, it was scheduled for
completion on June 21 -22, 2012. The arbitration ended late in the afternoon of June 22, 2012.
The transcripts were received in August, 2012 and the City and the PBA filed their
proposed findings of fact and legal arguments in September. The arbitrator rendered his decision
in November, 2012, and found that there was no just cause for termination due to the alleged use
of steroids since it was the arbitrator's opinion that there was doubt as to the reliability of the
doctor's opinion. However, the arbitrator did find that Officer Rodriguez was insubordinate and
that there was just cause for a four month suspension without pay, but that there was no just
cause for termination.
The City's contract with the Police Benevolent Association provides that both sides are
required to pay their share of the Arbitrator's fees. However, the arbitrator charged the City for
the cost of the continued arbitration in March, 2012, due to the fact that it was failure of the
City's witnesses to appear.
Attached are
1. The relevant e -mails from the arbitration association and the arbitrator's invoices;
and
2. The proposed Resolution.
1 1
American Arbitration Association
Dispute Resolution Services Worldwide
January 2, 2013
Via email
Simone M. Lopez, Esq.
Dade County PBA
10680 NW 25th Street
PBA Memorial Boulevard
Miami, FL 33172 -2108
Thomas F. Pepe, Esq,
Pepe & Nemire, P.A.
1450 Madruga Avenue, Suite 202
Coral Gables, FL 33146
New Jersey Labor Center
220 Davidson Avenue, Somerset, NJ 08873 -4159
telephone: 732 -560 -9560 facsimile: 732 -560 -8850
internet: http: / /www.adr.org/
Re: 32 390 00684 11
Dade County PBA
and
City of South Miami
Grievances: PBA File #11346, termination of Carlos Rodriguez, Police Officer
Dear Parties:
Enclosed please find the Arbitrator's bill for the above - captioned matter.
When paying this bill, checks should be made payable to the Arbitrator and mailed to him/her
directly. Please do not send checks for the Arbitrator to the American Arbitration
Association.
Your cooperation in this matter is greatly appreciated.
Thank you,
James Howlin
James Howlin
Case Manager
HowlinJ @adr.org
Enclosure
cc: William McGinnis
In the Matter of the Arbitration Between:
Dade county PBA
and
City of South Miami
Grievance of Carlos Rodriguez on his Termination
AAA Case # 32 390 00684 11
Before AAA Arbitrator: William J. Me Ginnis, Jr.
Decision on the Motion by the City of South Miami to substitute 2 depositions for -
the appearance of 2 witnesses in this Arbitration Matter
A Motion to Substitute depositions for live testimony by two physician witnesses was
Brought before me and argued by counsel for the city. The substitution of
depositions was requested due to the sudden unavailability of two city witnesses,
who had been provided timely notice of the hearing and their testimony at the
scheduled hearing on March 28 & 29, 2012 at the City hall of the City of South
Miami. Motion was timely filed by Thomas x. Pepe, Esq., City Attorney.
A Response to this motion was filed by Simone M. Lopez, Esq., Assistant General
Counsel for the union.
A Telephone Hearing in chambers, on this matter, was held on March 21, 2012 by
the Arbitrator and both parties provided oral argument on this Motion.
This Motion has arisen due to the sudden unavailability of the 2 witnesses to attend
due to either patient appointments and travel outside of the area by the Physicians
that were under subpoena. The counsel for the city argues that these witnesses are
essential to his case and in lieu of their unavailability; depositions could be entered
instead of their direct testimony.
The counsel for the union argues that these witnesses should appear to give direct
testimony and that the grievant has the right to have his counsel cross examine each
witness, the admission of depositions will deny the grievant that right. The union is
entitled by established practice in Public Sector Arbitration to cross examine all
relevant witnesses presented by the city.
After careful consideration of all arguments by counsel for each party and the
relevant evidence presented to date in this arbitration, it is ORDERED that the
testimony of all witnesses, shall be by live testimony and that the grievant shall have
the right to cross examine said witnesses. I further ORDER that the Motion to allow
the substitution of depositions in lieu of live testimony is denied.
Ordered this 22" `' day of March, 2012
(!�dwlvt)r 9W&UWd
William J. Me Ginnis, Jr.
AAA Arbitrator
** *Document for Case: 32 390 00684 11
** *Document for Case: 32 390 00684 11
James Howlin [Nowlin) @adr.org]
Sent: Friday, March 23, 2012 10:14 AM
To: Pepe, Thomas F.
Attachments: 32_390_684_11_INCP2_50206"1.doc (47 KB) ; 32 390 684 11 arb's ruling�l.pdf (81 KB)
li:oj American Arbitration Association - Dispute Resolution Services
Worldwide
DATE
TO
COMPANY
EMAIL
FROM
NUMBER OF
ATTACHMENTS
03/23/2012 10:13:56 AM
Thomas F. Pepe
Pepe & N .mire, P.A.
tpepe0southmiamilgov
James Howlin
1
Page 1 of 1
littp: / /www.adr.org
220 Davidson Avenue, Somerset, NJ 08873 -4159
telephone: 732 -560 -9560 facsimile: 732 -560 -8850
http: / /www.adr.org
RE Case number: 32 390 00684 11
Please see the attached documents in connection with the above referenced case.
RECIPIENTS Thomas F. Pepe; Simone M. Lopez Esq.; William McGinnis
NOTES:
The information in this transmittal (including attachments, if any) is privileged and /or confidential and is intended only for the recipient(s) listed
above. Any review, use, disclosure, distribution or copying of this transmittal is prohibited except by or on behalf of the intended recipient. Ifyou have
received this transmittal in error, please notify me immediately by reply email and destroy all copies of the transmittal. Thank you. ,
https: l lmail.soutlimiamifl.gov /owa / ?ae= Item &t =IPM. Note &id= RgAAAACAOojKx2 ° /`2bR,., 1/30/2013
ARBITRATOR'S BILL
* ** Make Check Payable to and mail Directly to the Arbitrator * **
William J. Mc Ginnis, Jr.
ARBITRATOR /MEDIATOR /SPECIAL MASTER
24399 Baltic Avenue - Suite 2101
Punta Gorda, Florida 33955
Phone /Fax: 941 -505 -5656
Ile: Dade County PEA v. City of South Miami
AAA, Case # 32 390 00684 11
Thomas F. Pepe, Esq. City Attorney
Simone M. Lopez, Esq. Assistant Gen. Counsel Dade PEA
Termination of Carlos Rodriguez 11
.
Arbitrator's Compensation for Postponement &
Uontinuation from the Cit tnat requesr d the
continuation of the scheduled 2 day hearing,
Hearing: 3/28 & 29112
Travel.
Sub Total:
Expenses:
Travel.
Hotel :3/27& 28/12
Hotel Parking:
Secretarial;
Meals.
Tolls.
Sub Total:
Total:
Payable by City
2.0 @$900aOO _ $17800.00
1.5 @$900.00 = $ 1,350.00
$3,150
$221.00
$304.92
$ 42.62
0
$ 44.00
$ 9.50
$ 3, 7'72.04
$622.04
$3, ?72.04
December 28, 2012
Arbitrator's Tax ID 205 - 344900 William J. Mc Ginnis, Jr.
ARBITRATOR'S BILL
William J. Mc Ginnis, Jr.
ARBITRATOR /MEDIATOR /SPECIAL MASTER
24399 Baltic Avenue - Suite 21181
Punta Gorda, Florida 33955
Phone /Fax: 941 -505 -5656
Re.* bade County PBA v. City of South Miami
AAA Case # 32 390 00684 11
Thomas F. Pepe, Esq. City Attorney
Simone M. Lopez, Esq. Assistant Caen. Counsel Basle PBA
Termination of Carlos Rodriguez
Arbitrator's Compensation
Motion hearing & preliminary
Decision 3/22/12 05
Bearing: 4/11 & 12/12
6/21& 22/12 4.0
Travel. 3.0
Study, Preparation &
Drafting of Award 5.0
Sub Total.
Expenses.
Travel.
Hote1:4/ 10 to 4/ 13/ 12
6/20 to 6/23/12
Hotel Parking:
Secretarial;
Meals:
'Tolls:
Sub Total.
Total.
.. .� �..� GOVAK i 1 1
@$900.00 = $3,600000
@$900.00 = $2,700600
@$900.00 = $42500.00
$11,250.00
,1.
80000
., .1 1
.:.:1_
$13,2 59.40
Payable by :; 6�630a2O
Payable by City c . .: 1
+ Prior bill to City for Continuation & Hearings Days
December 1 Arbitrator's