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Res No 078-16-14632RESOLUTION NO.078-16-14632 A Resolution instructing the City Attorney to prepare a motion for disqualification and instructing the City Manager to execute the motion in the case of Martinez de Castro v.City of South Miami. WHEREAS,there is evidence thatthetrial judge has ruled consistently infavor of the Plaintiff asto motions andasto the evidence without any basis infact and to the extent that the Commission fears that the City will not receive afairtrial of all remaining issues inthecasedue tothe cumulative nature of these rulings. NOW THEREFORE,BE IT RESOLVED BY THE MAYOR AND CITY COMMISSIONERS OF THE CITY OF SOUTH MIAMI,FLORIDA: Section 1.The City Manager is instructed tosignthe motion for disqualification on behalf of the Mayor andCity Commission.Acopy of the motion is attached tothis resolution. Section 2.Severability.If any section clause,sentence,or phrase of this resolution isfor any reason held invalid or unconstitutional bya court of competentjurisdiction,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 2^.day of Max,2016. APPROVED: READ LANGU ^PROVED AS TO FORM, JEGALi; ION THEI Page 1 of 1 COMMISSION VOTE:4-1 Mayor Stoddard:yea Vice Mayor Welsh:yea Commissioner Harris:yea Commissioner Edmond:yea Commissioner Liebman:nay IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION CASE NO.: 13-09342 CA 15 ORLANDO MARTINEZ de CASTRO, Chief of Police, City of South Miami, an individual, Plaintiff v. THE CITY OF SOUTH MIAMI, a Florida Municipal Corporation, Defendant. __________________________ ~I THE CITY OF SOUTH MIAMI, Counter-plaintiff, v. ORLANDO MARTINEZ de CASTRO, Counter-defendant. ----------------------------~I DEFENDANT'S MOTION FOR DISOUALIFICA TION/RECUSAL The Defendant/Counter Plaintiff, City of South Miami, (hereinafter "City"), pursuant to Rule 2.330, Fla. R. Jud. Admin., hereby moves this Honorable Court to enter an Order granting the City's Motion to Disqualify the trial judge, and as grounds therefor would state as follows: 1. The City has not previously requested the disqualification of the trial judge in the instant case. 2. State v. Oliu, 183 So. 3d 1161, 1162-1163 (Fla. 3d DCA 2016) held that" [ a] motion to recuse or disqualify a trial judge is legally sufficient when the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial." Valdes-Fauli v. Valdes-Fauli, 903 So. 2d 214,216 (Fla. 3d DCA 2005). The allegations contained in the motion must be taken as true. Masten v. State, 159 So. 3d 996, 997 (Fla. 3d DCA 2015). Actual bias or prejudice need not be shown, rather it is the appearance of bias or prejudice which requires disqualification. Marcotte v. Gloeckner, 679 So. 2d 1225, 1226 (Fla. 5th DCA 1996)." 3. In Suarez v. State, 95 Fla. 42, 58-60 (Fla. 1928), the Florida Supreme Court addresses the question of whether prior rulings are sufficient grounds for disqualification and the court reasoned that, standing alone, it is not. The court stated: The basis ofthe disqualification is that 'personal bias or prejudice' exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already Page 2 of 16 made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice. It was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause. *** After reading the entire record carefully, we find nothing in the rulings of the court on the evidence or the remarks of the judge in connection with such rulings which indicate any prejudice whatever on his part. He may have erred in some of his rulings, but the reading of this record indicates no desire on the part of the presiding judge to be other than fair to both sides in his conduct of the case. [Emphasis added] 4. However, the appellate court in Dura-Stress, Inc. v. Law, 634 So. 2d 769 (Fla. 5th DCA 1994) held that the cumulative effect of matters that are not, in and of themselves, sufficient, may be cumulatively sufficient to warrant disqualification. The court stated: The motion and supporting affidavit concerning the alleged communication between the judge and attorney Williams do not give any time reference and are legally insufficient. None ofthe other grounds alleged was timely raised before or during trial as required by Rule 2.160(e). Had these grounds been timely, they were, standing alone, a weak basis for recusal. Nothing in the court's statements about the Williams affidavit during the recusal hearing warranted disqualification. Because, however, of the cumulative effect of all these circumstances, Petitioner adequately established a reasonable basis to fear that it would not receive a fair trial in the remaining three untried cases. In those, the lower court should have granted the motion. 5. While the trial court's ruling against the City's motion for summary judgment and the court's ruling in favor ofthe Plaintiffs motion for summary Page 3 of 16 judgment could have been the result of mere judicial error on the part of the trial court, the cumulative effect of all of the trial court's rulings in favor of the Plaintiff and against the City, as well as rulings during the trial and the entry of a verdict that was clearly contrary to the evidence, has lead the City Commission to believe that the court will not give the City a fair trial on all remaining issues including the court's decision on whether or not to award the attorney's fee multiplier. Among some of the most significant rulings of the court's interpretation ofthe law in favor of the Plaintiff, but which are not supported by the facts and/or the law are: a. A finding that the Plaintiffs contract was not in violation of the city charter and not illegal. b. A finding that the Plaintiff had not resigned his position as chief of police by operation of law. c. A finding that the City's resolution, ratifying its tacit approval of the appointment of the Plaintiff to the position of acting city manager, was an ex post facto law. d. A finding that the Plaintiffs motion for summary judgment resolved all issues of liability in favor of the Plaintiff including all of the City's affirmative defenses when only the City's first affirmative defenses, was challenged by the Plaintiffs motion. e. A finding that the City had violated the mediation and arbitration provision of the contract when the Plaintiffs attorney had previously admitted that he intentionally waived mediation and arbitration. f. A finding in the court's order granting a summary judgment to the Plaintiff that the Plaintiff was entitled to a 3% longevity raise when there was an issue of fact that prevented a summary judgment on this issue and even the Plaintiffs attorney admitted at the hearing on the motion that this was an issue of fact. Moreover, there was no evidence to support the 3% longevity raise. Page 4 of 16 g. The denial of City's July 9,2015 motion to amend City's affirmative defenses to include the defense of fraudulent inducement into the employment contract when there was no evidence that the amendment would legally prejudice the Plaintiff. h. The denial of the City's motion filed on or about July 21, 2016 requesting reconsideration of the order granting the Plaintiffs motion for summary judgment. 1. At trial, the court refused to allow impeachment evidence to be introduced, or even to review the proffered documents, against Dr. Hector Mirabile. The impeachment evidence was of the conspiracy between Dr. Mirabile and the Plaintiff to hide their close personal relationship in order to have Dr. Mirabile hired as City Manager so he could then hire the Plaintiff as the chief of police. It also reflected that Dr. Mirabile had an agreement with the Plaintiff to hire him as the City's chief of police if Dr. Mirabile were hired as the city manager. The court refused to allow any evidence to show that Dr. Mirabile hid his relationship with the Plaintiff, from Mayor Stoddard, and that he led Mayor Stoddard to believe that Dr. Mirabile's hiring of the Plaintiff as the chief of police was an arm's length transaction. More importantly, after Dr. Mirabile testified at trial that he didn't know the Plaintiff very well, the court refused to allow the City to impeach Dr. Mirabile concerning one of his emails to Commissioner Brian Beasley in which Dr. Mirabile emphasized the fact that he and the Plaintiff were good friends and that their relationship as good friends went back thirty (30) years. A copy of the email in question is attached hereto and made a part hereof by reference. J. The court also refused to listen to the testimony of Latasha Nickle, the City's Human Resource manager, even as a proffer, to impeach Dr. Mirabile. The impeachment evidence showed that Dr. Mirabile's personal relationship with the Plaintiff overshadowed his duty to the City. Her deposition testimony was read into evidence as a proffer outside the presence of the judge, at the judge's instruction. She testified that Dr. Mirabile told her that Dr. Mirabile took the city manager job so that he could hire the Plaintiff as the chief of police, that the Plaintiff and Dr. Mirabile told her, as to their relationship, "that they go way back", and that the Plaintiff told her in the presence of Dr. Mirabile and in reference to Dr. Mirabile, that "he's my Page 5 of 16 partner". She also testified that, after the City had already given the health insurance out for bid and had received quotes from insurance carriers, the Plaintiff said: "No no it won't do because it won't let me have my This caused the City to look for other insurance carriers in order to find one that would cover the Plaintiffs . She testified that when the insurance was found to be too expensive, Dr. Mirabile said, "We'll figure out a way for the City to loan the money". Mrs. Nickle testified that she told them: "I don't think it's a good idea because now you are going to use public funds for an employee's private health matter .... " She said: "I was overruled, therefore we had the policy." Mrs. Nickle indicated that she created a loan program specifically to benefit the Plaintiff, and which was specifically and intentionally designed to ensure that the Plaintiff qualified for the loan program. She was ask whether the Plaintiff qualified for the program and she stated: "Well, it was impossible for him not to meet the criteria because there were certain criteria I proposed, which was struck, because he was not going to meet them." A copy of the pertinent sections of her deposition transcript is attached hereto and made a part hereof by reference. k. The rejection of the impeachment evidence and the refusal even to listen to it was highly prejudicial since it allowed Dr. Mirabile's testimony of his actions, taken at the eleventh hour before he was fired, which set in motion a 3% longevity raise that was not based on any rationale, other than to benefit the Plaintiff, to go unchallenged. \. The impeachment of Dr. Mirabile is also significant in light of the fact that the court also allowed into evidence, over objection of the City, a self-serving document signed by Dr. Mirabile in which he purported to act for the City. The document, dated October 11,2011, purported to give the Plaintiff $9,713 per year to administer the City's Parking Division for the entire remaining term of the Plaintiffs five-(5) year employment contract. The impeachment of Dr. Mirabile was also important since the testimony of Alfredo Riverol contradicted the testimony of Dr. Mirabile concerning the reason for the transfer of the parking division from the finance department to the police department. In order to justify the transfer of the parking division to the police department, Dr. Mirabile testified that the transfer was Page 6 of 16 made because Mr. Riverol wanted the parking division to be transferred to prevent an auditing conflict caused by having one person collect both the revenue and expend the revenue. Mr. Riverol testified that that was not true. See the attached affidavit/declaration of Alfredo Rivero!' 6. On April 21, 2016, the court executed a verdict on damages that was the culmination of the actions taken by the judge at the trial and it included damages that were not supported by the evidence. The most significant of the biased actions are set forth below. 7. There was no evidence to support the verdict that included a 3% longevity raise and this amount of the award was a contradiction of the uncontested factual evidence. There is no mention in the Plaintiff's employment contract of the word "longevity". There is no mention in the contract of any benefit for simply having served the City for eight (8) prior years, other than to determine vacation benefits. The only section of the contract that was introduced into evidence concerning prior years of service states: "Commencing with the execution of this Agreement, Employee shall immediately receive vacation benefits equivalent to that received by employees with the City based on the years of service by Employee to the City, which shall include all prior employment by Employee with the City. The Employee shall regain the sick time accumulated but unused when the Employee's prior employment with the City was terminated in 2006 which the Parties hereto agree is 380.00 hours" [Emphasis added] Page 7 of 16 The only evidence concerning any employee's right to a longevity raise is found in the City's Personnel Manual. The awarding of a 3% longevity raise to the Plaintiff clearly violated the City's Personnel Manual that established the longevity raise program and that reflects the City's intent to benefit those employees who stay employed by the City for ten (10) continuous years. The evidence showed that the Plaintiff worked for the City from 1998 to 2006 and then resigned. He was rehired in October, 2010 and by 2012, when Dr. Mirabile is purported to have granted him a 3% longevity raise, he had only served the City for two (2) years of continuous services. A copy of the pertinent portion of the personnel manual that was introduced into evidence and requires that the Plaintiff have ten (10) years of "continuous" service to the City is attached hereto and made a part hereof by reference. There was no evidence that the Plaintiff had provided the City with ten (10) years of continuous service. 8. There was no evidence to support the judge's damage verdict that included a 5% performance-based raise for the years 2013 and 2014 since there was no evidence of the Plaintiffs performance in 2013 or any evidence to extrapolate his 2013 performance to 2014. The Plaintiff called 2013 city manager, Stephen Alexander, to testify at trial; however, Mr. Alexander was not asked any questions regarding the Plaintiffs performance and specifically he was never asked to evaluate the Plaintiff based on any of the various categories contained in Page 8 of 16 the performance evaluation form that was used by Dr. Mirabile in 2012. In fact, the performance evaluation form that was in force in 2013 was never introduced into evidence. Even Dr. Mirabile's 2012 evaluation of the Plaintiff, which was introduced into evidence, was less than exceptional. Therefore, there was no evidence that the Plaintiff would have received a performance raise in 2013 or 2014. 9. There was no competent evidence to support the judge's damage verdict that included an 8% return on investment of the Plaintiffs International City/County Management Association (ICMA) retirement account and the award was a contradiction of the uncontested factual evidence. This amount of return was not based on any evidence of the rate of return that the ICMA account actually made. The Plaintiffs expert, Mr.Banos, testified that his calculation ofthe Plaintiffs damages included an 8% return on the ICMA pension plan and that it was based upon his opinion concerning pension plans in general and it was not based on the rate of return on the Plaintiffs ICMA account. The City's expert testified that he examined the records of the Plaintiffs ICMA account and calculated that its rate of return was actually 5%. Therefore, the award of an 8% return as damages was contrary to the evidence presented at trial. 10. The court's verdict included $18,414.48 for a car allowance. There was no evidence to support the $18,414.48 award since the contract specifically Page 9 of 16 provided that the car allowance was for transportation to and from work and only allowed for a personal stop along the way. This award was a contradiction of the uncontested factual evidence. The Plaintiff was not required to drive to and from work after he was terminated and so he didn't suffer a loss of the car. The contract, which is in evidence, specifically states that the car allowance was intended" ... to assist the Employee in performing services for the City as Police Chief. *** Employee may utilize the vehicle at any time (24 hours per day 7 days per week) in connection with providing services to the City, including official travel for the City and any personal use that occurs during Employee's portal to portal travel from home to the City, or any work related assignment, and back to his home. There was no evidence introduced as to any value of the vehicle for personal use. 11. There was no evidence to support the judge's damage verdict which included a clothing allowance and it was in contradiction of the uncontested factual evidence. The employment contract states: (d) Employee shall receive a clothing allowance equivalent to that provided to a police investigator under the police union contract with City and shall be payable as required by the police union contract with the City. This allowance shall be provided only for actual clothing expenses incurred in the course and scope of Employee's work and payments shall be made to Employee by City only upon presentation of receipts for payments for clothing expenses incurred in connection with Employee's work. All such payments to be made within thirty (30) days upon presentation of such receipts. [Emphasis added] Page 10 of 16 Since the Plaintiff was not required to work, he was not entitled to a clothing allowance. Moreover, the Plaintiff didn't introduce into evidence any receipts for clothing. 12. There was no evidence to support the judge's damage verdict which included a 5% raise for the 2016 fiscal year, beginning on October 1, 2015, and his verdict in this respect was contrary to the evidence. The contract terminated on October 19, 2015, and the Plaintiff could not have expected to be evaluated for the 2015/2016 fiscal year until on or after his anniversary date. His anniversary date was October 20, 2010, the date when the term of his employment contract commencement. The contract provided that he was to be evaluated in accordance with the personnel manual. The 2012 personnel manual that was introduced into evidence provides that evaluations are to be given on an employee's "anniversary date". No raise could have been awarded for the 2016 fiscal year since any raise in that fiscal year, which commenced on October 1, 2015, could not have been awarded until after his evaluation. The personnel manual did not require an evaluation until on or after his anniversary date on October 20. By that date, the term of the Plaintiffs employment contract had expired. The five-(5) year term of the contract ended on October 19, 2015, one day before he would have been able to demand an evaluation. Page 11 of 16 13. There was no evidence to support the judge's damage verdict which included compensation for the administration of the City's parking division after the Plaintiffs termination since his employment contract had never been amended to include such compensation. Therefore, this part of the verdict award was contradicted by the uncontested factual evidence. The employment contract that was introduced into evidence was between the Plaintiff and the City Commission and it does not authorize any additional compensation for administration of parking for the five-(5) year term of the employment contract. There was no evidence that this contract had been amended by the City Commission by written resolution as required by the City Charter that was introduced into evidence. The Charter required that all contracts involving the payment out of more than one year's appropriation be approved by the City Commission by resolution approved at a public hearing. There was no evidence that any resolution was passed by the City Commission at a public hearing that approved any amendment to the Plaintiffs five-(5) year employment contract. Even in the court's order granting the Plaintiffs motion for summary judgment, the court states: " ... per Article IV, Section 4(D), multi-annual contracts must be "made or approved by resolution adopted by the Commission after a public hearing." [Emphasis added] Page l20f16 VERIFICATION OF FACTS AND GOOD FAITH FILING STATE OF FLORIDA ) :S COUNTY OF MIAMI-DADE ) BEFORE ME, the undersigned authority, personally appeared THOMAS F. PEPE, who, after being first duly sworn, deposes and states of his personal knowledge as follows: 1. I am the attorney of record for the City of South Miami and I have firsthand knowledge of the facts set forth herein. 2. The forgoing recitals in the motion for disqualification as to the case and as to the facts are true and correct. 3. This Motion for Disqualification is being filed in good faith and based on the City's reasonable belief and fear that the trial judge is prejudiced against the City and biased in favor of the Plaintiff and that the City will not receive a fair trial and/or fair rulings in the future . Dated this 2nd day of May, 2016. Page 13 of 16 Sworn to and subscribed before me this 2nd day of May, 2016, by THOMAS F. PEPE. (SEAL) z.: ~.~ MY COMM ISSION' EE 843936 i'i!""ll'''''~~' SUSAN E. CIiETWOOO ~. i.! EXPIRES ' Oc1ober 15. 2016 -;~P.r;,f.i." Bonded Thru NoIary Public 1.Indefv.fiI~ ~n'lIY Known OR [ 1 Produced Identification Type of Identification: _______ _ --Notary Public State of Florida My Commission Expires: AFFIDAVIT OF STEVEN ALEXANDER STATE OF FLORIDA ) :S COUNTY OF MIAMI-DADE ) BEFORE ME, the undersigned authority, personall y appeared STEVEN ALEXANDER, who, after being first duly sworn, deposes and states of his personal knowledge as follows: 1. I am the City Manager for the City of South Mi ami and I have first- hand knowledge of the facts set f0l1h herein. Page 14 of 16 2. I and a majority of the members of the City Commission have read the motion for disqualification, including the City Attorney's verification of the statement of the case and the facts as set forth above. 3 . I have been instructed by the City Commission, in light of the statement of the case and of the facts set forth in the motion, the cumulative effect of the prior ruling against the City, the judge's refusal to allow the introduction of impeachment evidence and the judge'S refusal to even hear the proffer of the impeachment testimony or to see the proffered impeaching documents , all of which culminated in the signing of a verdict that included damages that were not suppOlted by any evidence and that were contradicted by the evidence presented, to request the disqualification of the trial judge. It is the opinion of the City Commission that, based on the foregoing grounds, the trial judge has shown that he is not impartial and that the City has a reasonable fear that the City will not receive a fair trial and fair rulings in the future , including ruling on the Plaintiffs motion to assess attorney's fees and the Plaintiff expressed intent to request a multiplier. In addition, if the case is remanded following the City's appeal, the City has a reasonable fear that the City will continue to be prejudged by the trial court's bias in favor of the Plaintiff and against the City. Date this 2nd Day of May, 2016 . ~..k::.-e __ ~ -lsi Steven Alexander Page 15 of 16 Sworn to and subscribed before me this 2nd day of May, 2016, by STEVEN ALEXANDER. (SEAL) [ 'Ji'ersOnally Known OR [ 1 Produced Identification Type of Identification: ________ _ Notary Pu State of Flori My Commission Expires : "~il"'11~ NKENGAA. PAYNE '.: '" MY COMMISSION IFF 920975 Iii:. ..... '/ EXPIRES: Oclob6r 5, 2011 '''.tIf.,rf.' Bondtd Thru NotMy Pubic UndwrifM!, Page 16 of 16 From: Dr Hector Mirabile <hmirabile@bellsQuth.net> To: Brian Beasely <BrianDBeasley@aol.com> Sent: Thu, Ju129, 20104:38 pm Subject: Appreciation Dear Brian and Oliver, I would like to thank you both for taking time out of your busy schedules to meet with me on the very important issue of the next City Manager for South Miami. Brian, I would particularly like to thank you for being encouraged by our good friend Orlando, into meeting us at Starbucks. I believe the meeting was very productive and I hope you and Oliver left with a sense of knowing me a little. I hope we can continue our engagements in improving the City's overall performance and ethical behavior and get to know each other better through our conversations and actions; since that is the only way that trust can be earned. I am at your disposal to assist in any matters I may be good at and will work on the pension opt out legislation as soon as you send to me so that Orlando can be brought in as your next Chief of Police. PS: In case you were not told by Orlando, I have known him (off and on)for 30 years. Chief Ken Harms (who I admire very much) was the Chief of Police who hired me into the Miami PO and that's when I met Orlando and his brother. Both were excellent investigators and I actually worked with his brother in various investigations. And Orlando turned out to be an exemplary Chief of Police. I hope we can bring him on board to South Miami as your Chief since he is probably the best overall senior law enforcement leader out there for your City. Sincerely, Hector Mirabile, Ph. D. Colonel, ARNG (Retired) 1 2 3 4 5 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, MIAMI-DADE COUNTY, IN AND FOR FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 13-09342 CA 15 ORLANDO MARTINEZ de CASTRO, Chief 6 of Police, City of South Miami, an individual, 7 Plaintiff/Counter-Defendant, 8 v. 9 THE CITY OF SOUTH MIAMI, a Florida 10 Municipal Corporation, 11 Defendant/Counter-Plaintiff. 12 13 I 14 15 16 17 18 19 20 21 ----------------x 6130 Sunset Drive South Miami, Florida Tuesday, January 19, 2016 10:44 a.m. -2:20 p.m. DEPOSITION OF LATASHA NICKLE Page 1 22 Taken before Edward Varkonyi, Registered 23 Merit Reporter and Notary Public for the State of 24 25 Florida at Large, pursuant to Notice of Taking Deposition filed in the above cause. -----.~ Veritext Legal Solutions 800-726-7007 305-376-8800 -----~- Page 5 1 Thereupon-- 2 LATASHA NICKLE 3 was called as a witness by the Plaintiff and having 4 been first duly sworn responded as follows: 5 THE WITNESS: I do. 6 DIRECT EXAMINATION 7 BY MR. TOTTEN: 8 Q. Good morning. Could you please state 9 your name for the record. 10 11 A. Q. 12 employer? LaTasha Nickle, N-I-C-K-L-E. And Ms. Nickle, who is your current City of South Miami. 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. So you are still employed by South Miami? As of today, yes, I am. And are you leaving the employment of South Miami anytime soon? A. Yes, I am. Q. And when is that? A. Actually today will be my last day. Q. Okay. And where are you going to be employed after today? A. I am moving to a private corporation after today. Q __ • __ Have you received a subpoena for trial i_n ____ J Veritext Legal Solutions 800-726-7007 305-376-8800 1 2 3 4 5 6 7 8 9 10 Page 99 Q. Even if it's regarding parking emergencies? A. But if it's an emergency it's not a function of Parking to respond. Parking writes you tickets for safety violations, parking at an expired meter or got an expired license. They are not an emergency response unit. Q. Approving expenses is not an emergency, is it? A. No, but I don't know anything about who 11 approves which expenses. 12 Q. All right. Now, regarding my client's 13 approval of the under the wellness 14 program --and I understand your objection, counsel, 15 and please let me know if you feel I am overstepping 16 stepping any boundaries. 17 My client was approved for the 18 pursuant to 8.9.5 of the City of South Miami 19 personnel manual; was he not? 20 21 22 23 24 25 800-726-7007 A. Q. A. Q. A. Q. Of course, it was written for him. It was written for him? Yes, it was. Really? Yes. How did that come about? ---------------- Veritext Legal Solutions 305-376-8800 -----------------, , Page 100 1 A. Originally the chief wanted to have our 2 insurance company or have the City's insurance cover 3 his benefit. 4 This was after we had already gone out 5 for bid, we received a quote where our premiums were 6 going to be decreased. We had gone to commission, 7 gotten it approved. 8 Then at, I want to say open enrollment or 9 right before open enrollment he came back and said 10 oh, no, this insurance won't do because it won't let 11 me have my . 12 We did a Chinese fire drill where our 13 benefits consultant, Sapoznik, chased down quotes and 14 did everything they could to find out how we could 15 get a plan that would cover . 16 They came back and it was going to be a 17 substantial increase in premiums for everyone as 18 opposed to a decrease. The chief still wanted to 19 move forward with it and I remember, because we were 20 in that little conference room, and I remember 21 looking at him and saying well, you can go before the 22 commission and all the employees and explain why 23 instead of their insurance premiums going down by, I 24 think it was like 1. 7 percent or so, 1.1, 1. 7, I 25 don't remember the exact numbers, instead of going Veritext Legal Solutions 800-726-7007 305-376-8800 ----------------- Page 101 1 down it's now going up by 20 or 30 percent. That 2 just doesn't make good sense to do that. 3 And Hector agreed that there is no way we 4 could do that. So in coming up with alternatives 5 they spoke with finance and said well, we'll figure 6 7 8 9 10 11 12 13 14 15 16 l7 18 19 20 out a way for the City to loan the money. I again said I don't think it's a good idea because now you are going to use public funds for an employee's private health matters and when they enter into this contract this contract is public record. When the City writes the check they are going to write the check and it's to be posted on the website that they wrote a check to the and any citizen who wants to come in here and find out why you wrote this check is going to know about this and I don't think it's a good idea. I was overruled, therefore we had the policy. Q. Is that the sole reason why the personnel manual was amended and adopted on December 20th of 2011 ? 21 A. No, we were revising the personnel manual 22 anyway. However, I was called at my parents' home 23 over Thanksgiving and told to rush and get the manual 24 out with the in it. It needed to 25 be out then because it was actually scheduled to come Veritext Legal Solutions 800-726-7007 305-376-8800 r~------------~~~~-- Page 102 lout in February like the other manual. The 2009 2 manual was approved in February. 3 It was originally on track for February 4 but I was called at home on Thanksgiving and told to 5 get it ready for that December commission meeting. 6 Q. Who called you? 7 8 9 was? 10 A. Q. A. The city manager, Dr. Mirabile. Do you recall when my client's surgery No, I don't. I think it was sometime 11 early in that year of 2012. 12 Q. Okay. So my client was the first person 13 to apply for the benefits under the wellness program 14 of Section 8.9.5 of the City of South Miami personnel 15 manual 2012? 16 I 17 18 19 20 21 22 23 24 25 recent? A. Q. A. Q. A. Q. A. Q. A. Yes, he was. He was approved? Yes, he was. Has anyone else applied since? Yes. And that's still maintained in the most No, it is not. It has been removed? Yes, it has. I ________ 1 Veritext Legal Solutions 800-726-7007 305-376-8800 I I Page 103 i i I 1 Q. Did your office have anything to do with 2 my client's approval for the ? 3 A. I received all the forms and made sure 4 that he met what was set forth in the policy. 5 Q. In the policy, you mean the 2012 6 personnel manual? 7 A. Right. B Q. And did he meet all the criteria? 9 A. Yes, he did. 10 Q. Because if he didn't meet the criteria 11 then he never would have been approved? 12 A. Well, it was impossible for him not to 13 meet the criteria because there were certain criteria 14 I proposed, which was struck, because he was not 15 going to meet them. 16 Q. Is any employee eligible for that 17 benefit? 1B A. No. 19 Q. Do you know what the minimum eligibility 20 requirements are? 21 A. It's what is set forth in the policy. 22 Q. It's page 6B. 23 A. Right, they have to meet all the 24 requirements set forth here. 25 I Q. Okay. And the requirements are B.9.5.1? I L~ Veritext Legal Solutions 800-726-7007 305-376-8800 1 2 3 4 5 6 7 8 9 .--._-------.--_._------- Page 104 A. Right, minimum eligibility requirements. Q. Okay. Let me direct you to page 11 of the same exhibit. A. Q. A. Q. A. Q. The manual? Yes, ma'am. Which exhibit are we on? I'm sorry. Here. Okay. Specifically I am looking at 1.2.3, 10 reemployment of former employees. 11 12 A. Q. Oh-huh. That states: "A former employee who 13 separate from the City in good standing shall be 14 eligible for reemployment in the City service. Such 15 employee is a new employee for all purposes, 16 including seniority and leave accrual and maximum 17 18 19 20 21 caps." A. Q. A. Q. Oh-huh. You see that? I do. Okay. And you agree that that was what 22 was in place? In 2012, yes. Was that in place In 2009? l 23 24 25 800-726-7007 A. Q. A. Not if it wasn't in this manual. Veritext Legal Solutions I don't __ ~ 305-376-8800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 Page 117 Q. But doesn't that conflict with 1.2.3? A. No, I don't think it does. MR. TOTTEN: Okay. I have no other questions. CROSS EXAMINATION BY MR. PEPE: Q. When the City adopts a budget, does that guarantee that any particular payment or provision for payment in the budget will be made in the same manner and same amount as reflected in the City budget? A. No, it does not. Q. What is the purpose of the City budget? A. The budget sets kind --well, it's just like any budget, it says this is how we are allocating resources and providing for if we spend this money, but sometimes it's spent on that, sometimes it's not. Sometimes more is spent and they have to do a budget transfer. Q. If the budget provides a specific amount as salary for a specific employee category does that mean that every employee in that category is going to receive that salary? 800-726-7007 A. Q. No, it does not. Does it mean that that salary cannot be Veritext Legal Solutions 305-376-8800 Page 1 1 2 3 4 5 6 7 reduced or increased? A. No, it does not. Q. You have been referring to a --several documents as PA. What does that stand for in your mind? A. Q. I'm sorry, personnel action form. And at the top of those documents it 8 specifically says that, doesn't it, personnel action 9 form? Yes, it says that. 10 11 A. Q. What is the purpose of a personnel action 12 form? 13 A. It really documents when there is a 14 change in the employee's status. Particularly with 15 regard to pay, you will see a PA will be generated. 16 There are other non-financially neutral 17 transfers that can be documented with a personnel 18 action form. It just means some particular action 19 has taken place with the employee but if there is no 20 money associated with it sometimes there is not a PA. 21 Q. Would you take a look at the personnel 22 manual that was in effect when the plaintiff in this 23 case, Mr. de Castro, was 24 MR. TOTTEN: Martinez de Castro. 25 BY MR. PEPE: Veritext Legal Solutions 800-726-7007 305-376-8800 ,-----~---------.------------------- Page 119 Martinez de Castro was first employed. Okay. 1 2 3 4 Q. A. Q. A. That would be what, the 2012 or the 2009? When he was first employed it would be 5 Exhibit 5, the 2009 personnel manual. 6 Q. Would you turn to the section that 7 provides for longevity pay increases. 8 9 10 11 A. Q. A. Q. Okay. I think that's page 24. It is. I remember it from earlier. Now, what's the criteria for obtaining a 12 pay increase for longevity? 13 A. The employee has to be in pay step six of 14 the pay plan for at least one year and they have to 15 have completed for longevity one, 10 years of 16 continuous satisfactory service, advance to second 17 longevity pay after completion of 15 years and 18 longevity three after completion of 20 years of 19 continuous satisfactory service. 20 Q. While you have been here, I think you 21 said approximately five years, have any employees 22 left the services of the City of South Miami and then 23 returned and been rehired? 24 A. I think so, but I don't know who off the 25 top of my head. Veritext Legal Solutions 800-726-7007 305-376-8800 ._------_._-.-_. ------------- Page 120 l I 1 Q. Who in the City of South Miami is looked 2 to for interpretation of the meaning of the language 3 found in the personnel manual? 4 A. It depends. Either myself or the city 5 attorney. 6 Q. Were you social friends with Mr. Martinez 7 de Castro? 8 A. Social friends? 9 Q. Yes. 10 A. No. 11 Q. While you were working for the City of 12 South Miami was it your habit to do favors for 13 friends when you were being paid to work for the City 14 of South Miami? 15 A. No. 16 Q. Did Mr. Martinez de Castro ever ask you 17 to do any work for his wife's business? 18 MR. TOTTEN: Object to the form. 19 THE WITNESS: Yes, he asked me to review 20 something for his wife. 21 BY MR. PEPE: 22 Q. What was it he asked you to do? 23 MR. TOTTEN: Object to the form. 24 THE WITNESS: She had some employees 25 an emplOyee_'_I_am_n_o_t_s_u_r_e_i_f_i_t_was more than ___ J Veritext Legal Solutions 800-726-7007 305-376-8800 1 2 3 4 5 6 7 8 9 --------------- Page 121 one, that she was going to terminate and he wanted to know if I would look at the letter for her and proofread it and give it back to him. BY MR. PEPE: Q. Did he ask that of you during normal business hours of the City of South Miami? MR. TOTTEN: Object to the form. THE WITNESS: I don't remember. Yeah, I was here, so yes. 10 BY MR. PEPE: 11 Q. Was there anything else he asked you to 12 do with regard to his wife's business, other than to 13 review a document? 14 15 16 17 18 19 20 21 22 MR. TOTTEN: Object to the form. THE WITNESS: To purchase tags from her. BY MR. PEPE: Q. Did any other department head at the City of South Miami ever ask you to do similar favors for them while you were working during your normal working hours? MR. TOTTEN: Object to the form. THE WITNESS: No. 23 BY MR. PEPE: 24 Q. Did you feel uncomfortable providing 25 Mr. Martinez de Castro's wife advice during your Veritext Legal Solutions 800-726-7007 305-376-8800 --.--._-' '---'-_.-.---i Page 122 i 1 normal working hours at the City of South Miami? 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TOTTEN: Object to the form. THE WITNESS: I wouldn't say I felt uncomfortable. It was proofreading a letter and I have heard people say that I was giving her legal advice. I was not. She was writing a letter of termination. I am a human resources director. I looked at it from that perspective, not --and I want to be very clear, not as an attorney giving her any legal advice about the legality of whether she could, should, whatever terminate the employees. She made as a business owner a decision that she was going to terminate an employee and she, through her husband --I don't even know that she asked me to do this. I know the chief called me over and asked me to do it and because he asked that I do it, I did. MR. TOTTEN: I'm going to move to strike this entire line of questioning as outside the scope of any legal issue that needs to be resolved in this matter based on the Court's March 10, 2015 order on the plaintiff's motion for partial summary judgment. BY MR. PEPE: Veritext Legal Solutions I .~ 800-726-7007 305-376-8800 Page 123l I 1 Q. Did you feel compelled in any way to help 2 Mr. Martinez de Castro's wife in her business efforts 3 in any way? 4 MR. TOTTEN: Objection, move to strike. 5 THE WITNESS: If you are talking about 6 the letter, it never occurred to me to refuse to 7 do it. Because of the relationship between the 8 chief and the city manager, who was my boss, I 9 would not have told him no, especially for what 10 was not a particularly onerous or time consuming 11 request. In other words, it just wasn't worth 12 the hassle to say no. 13 BY MR. PEPE: 14 Q. And what was that relationship, the one 15 between the city manager, Dr. Hector Mirabile, and 16 Mr. Martinez de Castro? 17 MR. TOTTEN: Object to the form, move to 18 strike. 19 THE WITNESS: They were close. 20 BY MR. PEPE: 21 Q. While Dr. Mirabile was working as the 22 city manager for the City of South Miami did he ever 23 appoint Mr. Martinez de Castro as the acting city 24 manager while Dr. Mirabile was going to be out of 25 town? Veritext Legal Solutions 800-726-7007 305-376-8800 1 2 3 4 5 6 7 8 9 10 11 12 13 Page 127 A. I don't know. Q. Do you remember anyone who has received a five percent merit raise other than the two that you previously mentioned, which was Mr. Riverol and Mr. Martinez de Castro? A. You mean just department heads? Q. Just department heads. A. No. Q. Was anything unusual about Dr. Mirabile giving a five percent merit increase just to Mr. Martinez de Castro the day before the Dr. Mirabile was going to be fired? A. Like I said, the circumstances were a 14 little different than normal. That particular year a 15 five percent was put in the budget for all the 16 department heads to receive a five percent. 17 So I do know that or let me clarify. 18 My understanding was that a five percent was going to 19 be put in, whether it ultimately was, but I believe 20 21 so. I believe I am correct on that. But that was the only one that was received. Like I said, it was 22 just the circumstances surrounding and the fact that 23 it came to me after Dr. Mirabile was already 24 terminated. 25 Q. 800-726-7007 You mean the actual paperwork came to you Veri text Legal Solutions 305-376-8800 Page 128 1 after Dr. Mirabile was terminated; is that correct? 2 A. Right, I believe so. 3 Q. Well, at that time, when only 4 Mr. Martinez de Castro received the five percent 5 raise, did anyone else deserve such a raise by 6 fulfilling the criteria? 7 A. I wouldn't know because Dr. Mirabile only 8 did an evaluation for Chief Martinez de Castro. That 9 was the only evaluation I believe he did that year. 10 I know he started one for Victor 11 Citarella but it was never completed and that was 12 earlier in the year than this. 13 Q. So until Dr. Mirabile completed a 14 performance evaluation, no one would have met the 15 criteria for a merit increase? 16 A. Not for a merit. But again, the five 17 percent that was put in did not necessarily have to 18 be merit based. In the chief's case, yes, because 19 his contract calls for merit-based increases. 20 I believe that's also the year that a two 21 percent --was it the year? I think it was five 22 years, if I'm not getting the years confused. I I 23 I believe there was a two percent across the board that 24 I I was put in for everyone and the five percent across 25 ~the board was out in for directors or five percent ----------, Veritext Legal Solutions 800-726-7007 305-376-8800 1 I wo~ budge'od [0' Page 129 directors. 2 I am not necessarily going to say he 3 would have had to do an evaluation for everyone if he 4 had decided to give everyone the five percent. He 5 could have used his discretion and done it as a merit 6 increase or he could have done it the same way we did 7 the increase for all the employees, where they didn't 8 get --they didn't have to have an evaluation to get 9 the increase. They were just awarded the increase. 10 Q. But, in fact, up until July of 2012 the 11 city manager had not given anyone an increase; is 12 that correct? 13 A. July of --I don't know if anyone got any 14 increase. Between what dates? 15 Q. During that fiscal year. 16 A. Between July of --I'm sorry, I'm lost 17 now. 18 Q. Strike that. Let me ask you a different 19 way. 20 The merit increases, that's based 21 anniversary date, not fiscal --not the fiscal year 22 of the City; is that correct? 23 A. Right, it should be consistent with your 24 I anniversary date. 25 ~ld be. 800-726-7007 no, no' 01",", hn' in ,heo,y ~ I Veritext Legal Solutions 305-376-8800 Page 130 1 Q. So were there anyone whose anniversary 2 date had been met, but for whom an evaluation was not 3 done for the purposes of giving them a raise? 4 A. Considering that that was the only 5 evaluation completed, yes, because there are 6 different anniversary dates. Alfredo's anniversary 7 date is right around the chief's, as I recall. Q. Well, Alfredo, was he hired before the chief? 8 9 10 A. I don't know the order without looking at 11 their PAs because, again, I wasn't here during that 12 time. 13 I just know that they are close in time 14 because that first year they were evaluated at about 15 the same time and given raises at about the same 16 time. 17 Q. Did you ever express your concerns to 18 Dr. Mirabile about him singling out Mr. Martinez de 19 Castro to give him a raise and not other individual 20 department heads at the city? 21 22 23 it . A. I think I may have spoken to him about Q. Did Dr. Mirabile ever tell you anything 24 about his relationship with Mr. Martinez de Castro? 25 MR. TOTTEN: Object to the form. -------_ ... - Veri text Legal Solutions 800-726-7007 305-376-8800 1 2 3 4 5 6 7 8 9 10 ,---------------. __ .. _-- Page 13;-! THE WITNESS: Yes. BY MR. PEPE: Q. What did he tell you? MR. TOTTEN: Object to the form. THE WITNESS: Specifically he told me that --when I say he, I really and truly have to say that it was both Hector and Orlando because we were all in the chief's office. So it could have come from both or either of them, but that they go way back. The 11 description from the chief's words I remember 12 was he's my partner. 13 BY MR. PEPE: 14 Q. Did Dr. Mirabile ever tell you why he 15 applied for the position as city manager at the City 16 of South Miami? 17 18 MR. TOTTEN: Object to the form. THE WITNESS: Yes. 19 BY MR. PEPE: 20 21 22 23 24 25 Q. What did he tell you? A. To rehire Orlando as the chief. MR. TOTTEN: Object to the form. THE WITNESS: And that was supposedly why Orlando came back. _____ .. J1 BY MR. PEPE: . Veritext Legal Solutions 800-726-7007 305-376-8800 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION CASE NO.: 13-09342 CA 15 ORLANDO MARTINEZ de CASTRO, Chief of Police, City of South Miami, an individual, Plaintiff v. THE CITY OF SOUTH MIAMI, a Florida Municipal Corporation, Defendant. ------------------------~/ THE CITY OF SOUTH MIAMI, Counter-plaintiff, v. ORLANDO MARTINEZ de CASTRO, Counter-defendant. ----------------------~/ AFFIDAVIT OF ALFREDO RIVEROL STATE OF FLORIDA ) :S COUNTY OF MIAMI-DADE ) BEFORE ME, the undersigned authority personally appeared ALFREDO RIVEROL, who, being by me first duly sworn, deposes and states of his personal knowledge as follows: 1. I have first-hand knowledge of the facts stated below. 2. I was subpoenaed by the Plaintiff in the above referenced case to testify at trial. I appeared in the morning of April 18, 2016 and testified that: there was no auditing conflict by having the same person control the collection, maintenance, and enforcement of the parking division; or any conflict that would require the transfer of the parking division from the Finance Department to the Police Department. Executed this 2nd day of May, 2016. Sworn to and subscribed before me this 2nd day of May, 2016, by ALFREDO RIVEROL. (SEAL) MPersonally Known OR [ 1 Produced Identification Type of Identification: _______ _ Page 2 of2 CITY OF SOUTH MIAMI PERSO:-\NEL RULES AND REGULATIONS 5.5 LongeYity Pay Plan The Longevity Pay Plan is intended to create an incentive to retain City employees and to reward employees for continuous, faithful, satisfactory service to the City. Longevity pay increases are awarded on the basis of such service as well as a sustained high level of job proficiency and meritorious achievement. There are three longevity pay steps designated in the City Pay Plan, (L-I), (L-2), (L-3). Each longevity pay will be three percent (3) % above the employee's pay step on the current City Pay Plan. Advancement to the first longevity pay (L-I), may be made when the employee has completed ten (10) years of continuous satisfactory service. Advancement to the second longevity pay (L- 2), may be made after completion of fifteen (15) years of continuous satisfactory service prior to the year of eligibility. Advancement to the third longevity pay (L-3) may be made after completion of twenty (20) years of continuous satisfactory service. In order to receive the Longevity Pay, the employee must have a current performance evaluation on file that reflects satisfactory performance. 5.6 Payroll Procedures The City of South Miami pays employees for hours worked and authorized paid leave. Employees are not entitled to payroll advances or to "cash in" accrued, but unused New Vacation Leave. In order to ensure the accuracy of each employee's pay, employees are required to comply with the policies and procedures set forth in this Manual. Failure to adhere to these rules may result in errors or delay in the employee's pay. 5.6.1 Timekeeping Requirements Federal and state laws require the City to keep an accurate record of the time worked by its non- exempt (hourly) employees to calculate employee pay and benefits. Time worked is all the time actually spent on the job performing assigned duties, whether before or after scheduled work hours. Non-exempt (hourly) employees may not report to their workstations and/or begin work more than 15 minutes before their scheduled start time and may not stay at their workstations more than IS minutes after their scheduled stop time without prior express permission from their Department Head. All non-exempt (hourly) employees must accurately record time worked on a time card, or by means established and approved by the City Manager for payroll purposes. Employees are required to record their own time at the beginning and end of each work period, including before and after the lunch break. Employees also must record their time whenever they leave the work site for any reason other than City business. 54 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION CASE NO.: 13-09342 CA 15 ORLANDO MARTINEZ de CASTRO, Chief of Police, City of South Miami, an individual, Plaintiff v. THE CITY OF SOUTH MIAMI, a Florida Municipal Corporation, Defendant. _______________________ ~f THE CITY OF SOUTH MIAMI, Counter-plaintiff, v. ORLANDO MARTINEZ de CASTRO, Counter-defendant. --------------------------~/ AFFIDAVIT OF STEVEN ALEXANDER STATE OF FLORIDA ) :S COUNTY OF MIAMI-DADE ) BEFORE ME, the undersigned authority personally appeared STEVEN ALEXANDER, who, being by me first duly sworn, deposes and states of his personal knowledge as follows: 1. I have first-hand knowledge of the facts stated below. 2. I was subpoenaed by the Plaintiff in the above referenced case to testify at trial. I appeared in the morning of April 18, 2016 and testified. 3. I was asked whether I would have given a performance-based raise to the Plaintiff in 2013 and I testified that I would not. I was never asked why I would not have given a performance-based raise to the Plaintiff. Specifically, [ was never asked for my opinion as to the Plaintiffs performance concerning any of the rating evaluation categories found in the City's Evaluation Form. Executed this 2nd day of May, 2016. STEVEN ALEXANDER Sworn to and subscribed before me this 2nd day of May, 20[6, by STEVEN ALEXANDER. (SEAL) /' [ 1 Personally Known OR [ 1 Produced Identification Type of Identification: _______ _ Page20f2 My Commission Expires: MARIA L GARCIA III COMMISSION I Ff 003178 EXPIRES, October 16. 2017 Bo~'TtlN*WIPllbIic~