Grievant, Grievance No:

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1 ARBITRATION HEARING BEFORE ARBITRATOR DONALD SPERO ARBITRATION IN THE MATTER BETWEEN: MIAMI FRATERNAL ORDER OF POLICE LODGE #20 ON BEHALF OF GRIEVANT ADRIAN RODRIGUEZ, Vs. Grievant, Grievance No: CITY OF M IAMI, Employer INTERIM OPINION AND ORDER OF ARBITRATOR In this matter Adrian Rodriguez grieves his discharge from his position of a police officer in the Police Department of the City of Miami (the City ). An evidentiary hearing was held on February 21, 2017 at the Miami City of Riverside Building, 444 Southwest Second Avenue in Miami Florida. Counsel for Miami Fraternal Order of Police Lodge 320, (the Union ). Eugene Gibbons, Esquire, represented Mr. Rodriguez. Stephanie Panoff, Esquire and Kevin R. Jones, Esquire represented the City. A stenographic record and video recordings were made of the proceeding. The Arbitrator and the parties were provided with copies of the transcript. Pursuant to leave granted by the Arbitrator at the conclusion of the evidentiary hearing the City has filed a motion to reconvene the hearing to allow the City to proceed with a line of inquiry propounded to Mr. Rodriguez by the City to which the Arbitrator sustained objections. A central basis for the objections was that Mr. Rodriguez was protected from having to answer the questions by the privilege against self-incrimination granted in the Fifth Amendment to the United States Constitution. By giving leave for the motion of the City the Arbitrator offered the parties the opportunity to fully brief the question of the issue of the admissibility of certain questions propounded by the City to Mr. Rodriguez.

2 Factual background 1 The City advances two reasons for dismissing Mr. Rodriguez from his police officer position. The bases for the City s decision are set forth in the reprimand he received dated April 27, (Jnt. Ex. 4, Tr. 201). (See also the testimony of the decision maker, Police Chief Rodolpho Llanes at Tr. 280.). Mr. Rodriguez declined to answer questions of homicide detective Ricardo Martinez relating to a robbery and murder that took place at a PCS Metro store on October 27, (Jnt. Ex. 4, Tr. 68, 69). The crime was committed approximately one year before Mr. Rodriguez was hired as a City police officer. The store manager, Mr. Yosbel Millaro-Vega, died after having been shot during the commission of the crime. Mr. Rodriguez was an employee of the store at the time of the murder/robbery. He was working at the store when the crime was committed. On the day of the crime the police who were investigating the incident interviewed Mr. Rodriguez. (Tr. 109). The second basis for Mr. Rodriguez dismissal was his failure on three occasions to comply with the terms under which he was placed on Relieved of Duty ( ROD ) status after he refused to answer questions of the detectives who were investigating the crime. The circumstances that led to Mr. Rodriguez discipline came about on December 17, 2012 when the City received a tip implicating Mr. Rodriguez in the robbery of the PCS Metro store. (Tr. 50, 51). After the City received the tip Mr. Rodriguez was called in on February , for questioning by homicide investigators. After Mr. Rodriguez was told that his father was a person of interest in the PCS Metro store robbery/murder case he left the room. (Tr. 69). The homicide detectives did not tell Mr. Rodriguez that he could not leave the room. They did not order him to stay or to answer questions. (Tr ). The city has raised a question as to whether Mr. Rodriguez asserted his Fifth Amendment rights. However at the evidentiary hearing the City stipulated that he did do so (Tr. 214, lines 3 - Mr. Jones: I stipulate. He asserted his Fifth Amendment right at the time 1 References herein to pages of the transcript of the evidentiary hearing are designated Tr.. Joint exhibits are designated Jnt. ex.. Exhibits presented by the City are designated City ex.. 2

3 they brought him in to re-interview 2 him. ). The testimony of Internal Affairs ( IA ) detective Louis Valdes, who witnessed the interview, indicates that detective Valdes was aware Mr. Rodriguez was asserting his Fifth Amendment rights. (Tr ). Mr. Rodriguez lawyer in the criminal case, Alberto Milian, informed detective Arostteque, who became the lead homicide investigator on the PCS Metro case, that Mr. Rodriguez would not provide a voluntary statement unless he was given Garrity 3 rights. (Tr ). In essence Mr. Rdrrgiuez demand was that any statement he gave to the homicide detectives would not be used in a criminal charge. Mr. Rodriguez demand was not granted. Two days after his February 11, 2013 interview Mr. Rodriguez was placed on ROD status where he remained receiving full pay for two and one-half years until his dismissal on June 10, (Tr. 71). While on ROD status Mr. Rodriguez was assigned to the Police Department s Internal Affairs division (the IA ) for administrative purposes. Mr. Rodriguez was duly advised of his obligations while on ROD status in a memorandum from then Police Chief Manuel Orosa dated February 13, (Jnt. Ex. 5). He was informed in the memorandum that he was required to remain at home during working hours, Monday through Friday from 8:00 a.m. to 4:00 p.m. He was required to report by telephone to Internal Affairs twice a day, at 10:00 a.m. and 2:00 p.m. If he needed to leave his residence for personal reasons he was required to first obtain approval from Internal Affairs. Mr. Rodriguez was aware of his obligations while on ROD status. (Tr. 196). This space is deliberately left vacant 2 The interview of Mr. Rodriguez on February 11, 2013 is referenced in some places in the transcript as a re-interview. However, no prior interview is mentioned in the reprimand nor is the Arbitrator able to locate information on a prior interview in the transcript. 3 In Garrity v. State of New Jersey, 385 U.S. 493 (1967) the Court held that statements given by police offers after they were told they would be fired if they did provide the statements were coerced and could not be used in evidence in criminal cases brought against them. 3

4 The positions of the parties The position of the City The city asserts that Mr. Rodriguez failure to answer questions of the homicide investigators violated numerous rules of conduct including cooperating with police investigations and the conduct of a police officer. (Jnt. Ex. 5, Tr ). At the heart of the City s argument is the oath signed by Mr. Rodriguez in order to become a police officer. The oath states in the following words: I do solemnly swear (or affirm) that I am entitled to hold the office to which I have been appointed and that I will support, protect and defend the Constitution and Government of the United States and the State of Florida against all enemies, domestic or foreign, and that I will bear true faith, loyalty an allegiance to the same and that I will faithfully, without fear or favor, perform all duties of the office of police officer of the City of Miami on which I am about to enter, so help me God. (Jnt. Ex 7, Tr. 48). The City s Motion asks the Arbitrator to reconvene the hearing and change his rulings sustaining the Union s objections to the following questions. (City Motion p. 3): 1. You knew that the manager was taking a large some of money that day to the bank. (R. at 223) 2. Have you told the City, anybody, any investigative agency in the City of Miami or anywhere about the specific details about your family s involvement about the death of death of Millares-Vega? Have you told anybody? (R. at 225). 3. What did you tell the primary, the first responding investigator the day of (sic) the day of the homicide? (R. at 266). 4. Do you know who planned the robbery? (R. at269). 5. You didn t intend for Mr. Millares to die, did you? (R. at 269). 6. Do you know what happened to the money after the robbery? (R. at 269). 7. Why did you move your car before Mr. Millares was killed? (R. at 269). 8. So moving your car is going to incriminate you? (R. at 269). The City notes that it suspended its questioning after the objections were sustained. (id.). Consideration is given herein only to objections to questions actually asked. The City argues that the questions asked Mr. Rodriguez were essential to test his credibility as a witness; that broad latitude is allowed in cross-examination 4

5 The City also contends that Mr. Rodriguez dismissal was justified by the three occasions that he left his home to attend court hearings in a criminal matter involving his brother, Brian Rodriguez, while he was on ROD status, without first obtaining authorization to do so. The City asserts that Mr. Rodriguez violated the conditions of his ROD status and prevaricated as to his whereabouts. The position of the Union The Union contends that Mr. Rodriguez was discharged for asserting his privilege against self-incrimination. The questions are objectionable as improper end runs around Mr. Rodriguez Constitutional privilege against self-incrimination and his Garrity rights. The questions are all related to the robbery. They are irrelevant to the issues involved in the arbitration proceeding. The questions were an attempt to obtain information about the homicide. The Union points out that at the hearing the City had the opportunity to question Mr. Rodriguez about his activities on the three occasions where he attended his brother s court hearing while on ROD status. The City made use of its opportunity to question Mr. Rodriguez on the ROD issues. DECISION OF THE ARBITRATOR The right of Mr. Rodriguez to refuse to answer questions based on the privilege against self-incrimination Mr. Rodriguez Fifth Amendment and Garrity rights are strictly questions of law. The only factual issue with respect to those issues is raised by the City s argument that he did not assert his right to not incriminate himself. The record presented by the City does not support that assertion. In fact the City s own stipulation concedes he did assert those rights. There is no fact issue remaining relating to whether he did assert those rights. The City had the opportunity to question him at the evidentiary hearing on that issue but it did not do so. The Arbitrator therefore finds that that Mr. Rodriguez did assert his right against selfincrimination. In light of the testimony of detective Valdes and the City s stipulation there is no fact issue on which to test Mr. Rodriguez credibility on his assertion of his privilege against self-incrimination. There is no fact issue on which to test Mr. Rodriguez credibility as to whether Mr. Rodriguez was afforded his rights under Garrity. There is no contention by the City that Mr. 5

6 Rodriguez was offered Garrity rights. Accordingly the City was not prejudiced by not being able to test Mr. Rodriguez credibility on the Garrity issue. Therefore there is no basis for allowing a reconvened hearing to further interrogate Mr. Rodriguez on the Fifth Amendment or Garrity questions. The issue of Mr. Rodriguez alleged violations of his ROD status The Arbitrator will not change his ruling on the questions he ruled objectionable. The questions are related to the PCS Metro robbery and were not a test of Mr. Rodriguez credibility. The questions have no relation to the merits of the current proceeding. Mr. Rodriguez testified extensively on the facts related to his compliance with the requirements of his ROD status. (Tr ). The City cross-examined him on the subject. (Tr ). He answered the City s questions. The City was not inhibited from proceeding with its examination of Mr. Rodriguez on his compliance or non compliance with the terms of his ROD. No further examination is called for on the ROD issue. ORDER OF THE ARBITRATOR For the forgoing reasons the motion of the City to reconvene the hearing to permit further questioning of Mr. Rodriguez is denied. The parties briefs addressing the City s motion were directed to the admissibility of questions propounded by the City on its cross-examination of Mr. Rodriguez. The parties now have the opportunity to present argument on whether Mr. Rodriguez was entitled as a matter of law to Fifth Amendment and Garrity rights. They also have the opportunity to present argument on whether the record establishes that Mr. Rodriguez violated the conditions of his ROD as well as any other legal questions that have been placed in issue. Accordingly it is hereby ordered that: 1. The parties have leave to simultaneously present written arguments to the Arbitrator on whether Mr. Rodriguez was entitled to assert Fifth Amendment and Garrity rights when questioned by the homicide detectives and whether he violated the conditions of his ROD along with any other remaining questions not decided herein that they contend are supported by the record. Their arguments shall be sent to 6

7 the Arbitrator no later than 20 business days after their receipt of this Interim Decision and Order. 2. The foregoing time limits will be extended on the application of either party showing good cause for doing so. 3. The parties written arguments may be sent to the Arbitrator by At the request of the parties the Arbitrator will exchange their written arguments by . Entered this 24 th day of April 2017 By: s:donald J. Spero Arbitrator P.O Palm Beach Gardens, FL (561) Fax (561)