City of Miami. City Hall 3500 Pan American Drive Miami, FL Meeting Minutes. Tuesday, August 2, :00 AM

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1 City of Miami City Hall 3500 Pan American Drive Miami, FL Meeting Minutes Tuesday, August 2, :00 AM Commission Chambers Civil Service Board Miguel de la O, Chairman William J. Scarola, Chief Examiner Jorge L. Garcia, Member Florene L. Nichols, Member Mariano Cruz, Member

2 PLEDGE OF ALLEGIANCE APPROVING THE MINUTES OF: Regular Meeting of July 19, 2005 The meeting was called to order at 10:10 a.m. Present: Member Nichols, Member Garcia, Member Cruz and Chairperson de la O PERSONNEL MATTERS Motion by Member Cruz, seconded by Member Garcia, to APPROVE PASSED by the following vote. B DISCUSSION ITEM MILITARY LEAVE OF ABSENCE Copy of a memorandum from Priscilla A. Thompson, City Clerk, requesting an extension of the probationary period of Joyce Jones, Transcriber, for an additional six (6) months, beyond August 17, Chairman de la O asked Ms. Jones if she was aware that the City Clerk was attempting to extend her probationary period. Joyce Jones, Transcriber, Office of the City Clerk, appeared before the Board and answered in the affirmative. Chairman de la O asked Ms. Jones if she objected to the extension of her probationary period. Ms. Jones answered in the negative. Following discussion, Chairman de la O asked for a motion on this matter. Motion by Member Cruz, seconded by Member Garcia, that this matter be APPROVED PASSED by the following vote. C DISCUSSION ITEM Maria E. del Rio, GIS Developer, requests active duty military leave without pay from July 18, 2005 through February 1, Copy of Orders Attached. Motion by Member Cruz, seconded by Member Garcia, that this matter be APPROVED PASSED by the following vote. City of Miami Page 2

3 C DISCUSSION ITEM DISCIPLINARY MATTERS C.T. Gregoire, Police Officer, requests active duty military leave without pay from July 24, 2005 through September 30, Copy of Orders Attached Motion by Member Cruz, seconded by Member Garcia, that this matter be APPROVED PASSED by the following vote. D DISCUSSION ITEM Copy of a letter from Mario Soldevilla, Director, Department of Solid Waste, notifying Lamont Kelly, Waste Equipment Operator, of a one (1) work day suspension, effective July 21, (NO APPEAL TO DATE) NOTIFIED D DISCUSSION ITEM Copy of a letter from Chief John F. Timoney, Director, Department of Police, notifying Rronniba Kamarakafego, Police Officer, of her termination from employment, effective July 6, (NO APPEAL TO DATE) NOTIFIED D DISCUSSION ITEM Copy of a letter from Chief John F. Timoney, Director, Department of Police, notifying Peter Reynolds, Police Officer, of a ten (10) hour suspension, effective July 12, (NO APPEAL TO DATE) NOTIFIED D DISCUSSION ITEM Copy of a letter from Chief John F. Timoney, Director, Department of Police, notifying Julio C. Pino, Police Sergeant, of a ten (10) hour suspension, effective July 13, 2005, and copy of a memorandum from Julio C. Pino requesting a hearing of appeal relative to his suspension. A hearing will be scheduled in accordance with Civil Service Rules and Regulations. RECEIVED AND FILED D DISCUSSION ITEM Copy of a letter from Chief John F. Timoney, Director, Department of Police, notifying Bartholomew Gunderman, Police Sergeant, of a forfeiture of twenty (20) hours of earned overtime, effective July 20, 2005, and copy of a memorandum from Bartholomew Gunderman requesting a hearing of appeal relative to his forfeiture of earned overtime. A hearing will be scheduled in accordance with Civil Service Rules and Regulations RECEIVED AND FILED City of Miami Page 3

4 GENERAL ITEMS E DISCUSSION ITEM Copy of Findings of Fact concerning the Investigation Hearing of Jose Romano. Chairman de la O informed Attorney Cohen that only four Board Members were present today and asked him if he wished to proceed with his presentation. Ronald J. Cohen, Attorney at Law on behalf of Jose Romano, appeared before the Board and answered in the affirmative. Chairman de la O asked Attorney Cohen if he submitted two alternate Findings of Fact. Attorney Cohen responded in the affirmative. He went on to say that he wanted to make it clear to the Board that he and his client did not agree with one of the findings that he prepared with regards to the Recommendation section of the report; however, it was what they understood the Board actually found. Attorney Cohen further stated that at the last meeting, he indicated that he would submit Findings that they felt would be in keeping with what the Board found in the recommendation and they do not agree with that set of findings [The findings with the longer recommendation]. He stated that they disagree with the findings that include a long paragraph, approximately a page long, but they understand that this is what the Board found. Attorney Cohen provided the Board with a detailed overview of why they disagreed with the Board's proposed Findings and recommendation in support of his argument. He stated that what the Board found, based upon its remarks was that it was okay that Mr. Simon was mad with Mr. Romano for what he had said about the City not complying with the OMB [Office of Management and Budget] Circular and that they needed to do so. Attorney Cohen went on to say that what the Board found by its vote, was that what happened to Mr. Romano was okay and they would hope that the Members change their vote. He further stated that he submitted findings that are in keeping with their position that what happened to Mr. Romano was not okay. Attorney Cohen stated that he also submitted findings and they were actually the same in both reports that he submitted; however, he submitted a recommendation that they think is in keeping with the law, which is the shorter report that he submitted. He read the recommendation portion of the report into the record in support of his argument, Attorney Cohen stated that it is not okay to punish someone when they tell you the truth and you are mad at them for telling you the truth. He went on to say that the truth Mr. Romano told was about an illegal action by not following the Office of Management/Budget [OMB] circulars. Attorney Cohen stated that there was discussion at a previous meeting about telling the City Manager that Mr. Romano should not be sent over to the Homeless Program, which was the same place that he audited. He went on to say that he would ask that the Board not include this issue in the findings because it is not before the Board. Attorney Cohen further stated that if the Board were to place this information in the findings, it would be punishing Mr. Romano for coming before the Board. He stated that Mr. Romano did not bring this issue to the Board because it is pending someone where else. Attorney Cohen went on to say that there is no reason to include it in the findings because it was not fully developed since he was not allowed to go into this matter. He further stated that the City was allowed to get into this matter with Mr. Gonzalez, but he was not allowed to do so. Attorney Cohen stated that if it is placed in the findings, it would hurt Mr. Romano at his Arbitration hearing because the City would say that it was used at Civil Service. Chairman de la O asked why Mr. Romano would be hurt at his arbitration hearing if the issue about him being transferred out of the Homeless Program is included in the findings. Attorney Cohen responded that this is an argument they have before the Arbitrator and the City City of Miami Page 4

5 would likely argue that they raised the issue at Civil Service, that it is res judicata, and the City Manager denied it, this would simply hurt Mr. Romano. He went on to say that they had not asked the Board to consider this matter; therefore, it should not be included in the recommendations. Chairman de la O asked Attorney Cohen if he thinks it would be res judicata even if they say it was not raised at Civil Service, but the Board noted it anyway. Attorney Cohen responded in the negative. He went on to say that it is another hurdle for Mr. Romano to go through for no reason. Attorney Cohen further stated that in his view, the Board would not only have said that it is okay to do what they did to Mr. Romano, but then the Board would have injured him in his chance to get relief somewhere else, and they would ask that the Board not do this. Chairman de la O stated that the recommendation does not state whether or not Mr. Romano should have been transferred, but what it does say is that in light of this investigation - and the words in light of this investigation could be removed - that the City Manager review a policy of transferring an auditor to an office which he or she is auditing. He went on to say that this is a bad policy regardless of whether the person complained about the program or not. Chairman de la O further stated that the second sentence indicates the reason why; because an auditor who is auditing a program that they are involved in cannot be objective. He asked Attorney Cohen if he felt that this was going to hurt his client. Attorney Cohen answered in the affirmative. Chairman de la O asked if there was something else in the report that would hurt his client. Attorney Cohen answered in the negative. He went on to say that this case has nothing to do with transfers. Attorney Cohen further stated that the Board is ruling and giving gratuitous advice on something not before it. Attorney Cohen went on to say that this is Mr. Romano's case; it is not a general issue about auditors, but rather about specific actions that were taken against Mr. Romano for a report that he specifically made about not following OMB circulars. Chairman de la O stated that the problem is that the Board also serves in an oversight function and they are in the business of giving the City Manager recommendations apart from Mr. Romano's case. Attorney Cohen stated that if this is the Board's rule and function, and if it is apart from Mr. Romano's case do not include it in his case. Attorney Cohen further stated that he did not know if it was well meaning or not because it is unimportant to him, but what he can tell the Board is that it would have a very severe, unintended consequence on Mr. Romano. Chairman de la O asked Mr. Valentine if he could break out the recommendation and do it independently of the findings. Mark A. Valentine, Special Counsel to the Board, stated that is what he was thinking. He went on to say that the recommendation can be eliminated and a separate recommendation can be issued to the City Manager not in light of Mr. Romano's case. Assistant City Attorney Elsa I. Jaramillo-Velez interjected and stated that she did not understand why the Board was hearing Mr. Romano's case again. She went on to say that the case was already decided and she has some serious concerns about both submissions of findings that were presented because what is included in the reports is not what occurred. Chairman de la O advised Assistant City Attorney Jaramillo-Velez to allow Attorney Cohen to City of Miami Page 5

6 give his pitch and then he would allow her to respond. Attorney Cohen continued to provide the Board with an overview of the findings and recommendations. He went on to say that the Civil Service Board is in place to protect the people so that when the higher-ups are not doing what they are supposed to be doing or violating the law in one fashion or another; that someone can speak up and be protected. Attorney Cohen further stated that he knows what the vote was, but the Board can change its mind and it only takes a Member who was on the prevailing side to make a motion to reconsider the Board's vote. He stated that now that the Board knows what it is specifically is being asked to do, they would ask that the Board reconsider because this is wrong. Assistant City Attorney Jaramillo-Velez stated that Mr. Romano case was heard on March 1, She went on to say that Attorney Cohen's suggestion of a Motion for Reconsideration comes a little too late and that the Board should be insulted by both findings of fact that were submitted by Attorney Cohen because what is included in the findings collectively question each Member's intelligence. Assistant City Attorney Jaramillo-Velez further stated that the findings do not include accurate statements and the language is very sarcastic and not professional. She stated that according to the March 1, 2005 minutes, the Board made three motions in Mr. Romano's case and voted in the City's favor on each motion. Assistant City Attorney Jaramillo-Velez went on to say that the Board's first approved motion was that the April 13, [from Bradley Simon] does not constitute retaliation [found on page 10], the second was that the barring of Mr. Romano from the Miami Riverside Center (MRC) building and the memo from that Mr. Gonzalez sent on July 15, 2004 do not constitute retaliation [found on page 11], and the third was that a letter or memo be forwarded to the City Manager recommending that he review the moving of an auditor under [the supervision of] an office which he is supposed to be auditing [found on page 13]. She further stated that the findings submitted by Mr. Cohen are insulting to this Board and if the Board were to consider adopting the findings, it should be ashamed because it is not what the Board decided and the sarcasm and unprofessionalism that is included in the findings is tremendous. Assistant City Attorney Jaramillo-Velez stated that Special Counsel Valentine may want to shed light on this matter. Chairman de la O responded that Special Counsel Valentine serves at the pleasure of the Board; therefore, if the Board wants his assistance, they would ask for it. He asked Attorney Cohen if he wished to make rebuttal to the City's position. Attorney Cohen responded in the affirmative. He read Mr. Simon's testimony into the record in support of his argument. Attorney Cohen further stated that if an auditor had stood up at Enron, WorldCom or Global Crossing three or four years beforehand maybe we would not have all these retirees with no retirement. He stated that there is nothing sarcastic or unprofessional about what he said because what he said is faithful to what the Board found. Attorney Cohen went on to say that the Board did not say that it did not happen, but it said that it was okay that it happened. He further stated that the Board misunderstood the charge; however, the charge is not limited to Mr. Romano's appeal. Attorney Cohen stated that the charge specifically indicates that these actions were taken in part because of what Mr. Romano had said in the audit. He went on to say that the Board overlooked this charge when it voted on this matter. Attorney Cohen further stated that the Board should not submit Special Counsel Valentine's proposed findings of fact because it is not based on anything. Member Cruz stated that he would like to know how the work climate currently for Mr. Romano and whether it changed a lot. Attorney Cohen stated that the day before their appearance before the Board, Mr. Romano's work climate had not changed. Member Cruz asked if Mr. Romano was put in a cubicle with no telephone or computer. City of Miami Page 6

7 Attorney Cohen stated that Mr. Romano is at the NET Office, but he is not doing auditing work and they don't want him to do auditing work although he is a Principal Staff Auditor. He went on to say that they do not like it, so they moved him, but that is not before this Board. Member Cruz asked if the Department wants "yes" people. Attorney Cohen answered in the affirmative. He went on to say that auditors are not "yes" people. He went on to say that perhaps he did not make his argument clear the first time, but this matter was based on Mr. Romano's audit and it is not right and the Board needs to do something about it. Member Garcia asked if there was going to be a different finding on the transfer issue. Attorney Cohen responded that the transfer issue is not before the Board. Chairman de la O stated that he thinks the Board should move to amend Special Counsel Valentine's proposed findings, get rid of the recommendation, and place the recommendation as a separate document to the City Manager to ensure that we do no harm to Mr. Romano. He went on to say that the truth of the matter is the Board does not need a recommendation because it did not uphold any of the charges. Chairman de la O further stated that the only reason the recommendation was included was because the Board wanted the City Manager to know its concern about having an auditor in a department that he/she is auditing. Chairman de la O passed the gavel to Member Garcia and made a motion, which was seconded by Member Nichols to amend the proposed findings prepared by Special Counsel Valentine to drop the recommendation section and make a separate recommendation to the City Manager regarding having a policy of not placing auditors in the office in which they are auditing. Under discussion, Chairman de la O stated that what the Board does with this motion has nothing to do with which findings the Board adopts, but the Board should let the City Manager know what its feelings were about this policy of having an auditors audit the office that they are working in. He went on to say that the Board should pass this motion regardless of what else the Board does afterwards. Member Cruz stated that if the job classification calls for auditing, that is what Mr. Romano should be doing. Chairman de la O stated that what is being referred to now by the motion on the floor is a recommendation to the City Manager for a general policy. The motion on the floor was approved (3-1) by the Board as follows: AYES: de la O, Nichols, Cruz. NOES: Garcia. Motion that this matter be APPROVED PASSED by the following vote. Votes: Ayes: Member Nichols, Member Garcia and Member Cruz Noes: Chairperson de la O Following the vote on the first motion, the gavel was returned to Chairman de la O. Chairman de la O asked if any Member wished to make a motion as to which one of the three recommendations should the Board adopt. He went on to say that there is one proposed findings of fact prepared by Special Counsel Valentine and two prepared by Attorney Cohen. Chairman de la O further stated that Attorney Cohen is asking that the Board adopt the short proposed findings that he prepared. Assistant City Attorney Jaramillo-Velez stated that she would ask the Board to adopt the City of Miami Page 7

8 proposed findings prepared by Special Counsel Valentine because it is accurate. Following discussion, Member Cruz made a motion, which was seconded by Member Nichols, to adopt the short proposed findings of fact that was prepared and preferred by Attorney Ronald J. Cohen. Under discussion, Member Garcia asked if this would be the final discussion on this matter. Chairman de la O stated that this is what the Board would be saying the findings are. He went on to say that if the Board adopts Attorney Cohen's preferred recommendations, the Board would be contradicting its vote, which means that the Board would have to change its vote. Following further discussion, the motion on the floor was approved (3-1) by the Board as follows: AYES: Garcia, Nichols, Cruz. NOES: de la O. REPORTS F REPORT REQUESTS FOR HEARINGS TODAY'S HEARINGS Notification of Pending Hearings as of August 2, PRESENTED H HEARINGS Hearing on behalf of Steve Carroll, Fire Fighter, relative to his Unsatisfactory Service Rating for the period ending June The Board entered into the scheduled hearing on behalf of Steven Carroll, Fire Fighter, Department of Fire-Rescue, relative to his unsatisfactory service rating for the period ending June Elsa I. Jaramillo-Velez, Assistant City Attorney, represented the City. Steven Carroll, Fire Fighter, represented himself. Chairman de la O asked Fire Fighter Carroll if there was anything he wished to say regarding his unsatisfactory service rating. Fire Fighter Carroll answered in the negative. Chairman de la O asked the City representative if she wished to say anything regarding Fire Fighter Carroll's unsatisfactory service rating. Assistant City Attorney Jaramillo-Velez answered in the negative. She went on to say that this infraction was based upon the Fire-Rescue Department's departmental orders, which state that whenever an employee receives disciplinary action(s) and the penalty is 96 hours or more, this would impose an automatic unsatisfactory service rating. Chairman de la O stated that he needed a motion to accept the unsatisfactory service rating that was issued to Fire Fighter Steven Carroll. Motion by Member Garcia, seconded by Member Cruz, that this matter be APPROVED PASSED by the following vote. City of Miami Page 8

9 ADJOURNMENT: The meeting adjourned at 10:40 a.m. Motion by Member Cruz, seconded by Member Garcia, to APPROVED PASSED by the following vote. SIGNATURE: Miguel de la O, Chairman ATTEST: Tishria L. Mindingall, Executive Secretary City of Miami Page 9