HomeMy WebLinkAboutItem #39 - Discussion ItemTO
FROM
CITY OF MIAMI, FLORIDA 24
INTER -OFFICE MEMORANDUM
Honorable Mayor and DATE: April 21, 1998 FILE
Members of the City Commission
SUBJECT:
Discussion Item
Jose Garcia -Pedrosa REFERENCES: City Commission Meeting
City Manager April 18, 1998
ENCLOSURES:
I am placing a discussion item pursuant to Commissioner Regalado's request regarding
the award of the Pension Board to Former City Manager Cesar Odio.
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\LEIANDRU VILARELLt) F
City Attorney ; nuW� �Vm
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April 30, 1998
Ms. Sandra Elenberg
Administrator
City of Miami General Employees
and Sanitation Employees Retirement Trust
1000 Brickell Avenue, Ste. 1010
Miami, FL 33131
Re: Cesar Odio
Dear Ms. Elenberg:
(305) 416-1800
Telecopier: (305) 416-1801
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Commissioner Regalado has requested that the board reconsider its decision
of March 27, 1998 permitting Mr. Cesar Odio to continue to receive pension
benefits. I would like to make a personal appearance at the next pension board
hearing, May 8, 1998, to request the board to reconsider its decision.
Thank you for your cooperation in this matter
r
Lere6janYo Vit
City Attorney
c: Ronald A. Silver, Esq.
Attorney for GESE Retirement
Honorable Mayor and Members
of the City Commission
Jose Garcia -Pedrosa
City Manager
A V/RCL)w 102 '
OFFICE OF THE (AIY AfrORNEY/odd S.W. -Ind Avenue, Suite 945/Miami, Florida 331 10-1 )I
00
4 3 4.1
r RECEIVED
TO
FROM
Commissioner Tomas
City
CITY OF MIAMI, FLORIDA APR 2 11998
INTER -OFFICE MEMORANDUM
DATE: April 20, 1998
SUBJECT:
FILE: hf1A-9M14
Request for Legal Opinion
REFERENCES: City Powers; Pension Granted
ENCLOSURES: to Former City Manager Odio.
You have requested a legal opinion on substantially the following questions:
1. IS ANY LEGAL ACTION AVAILABLE TO
BLOCK THE DECISION OF THE PENSION
BOARD NOT TO FORFEIT FORMER CITY
MANAGER CESAR ODIO'S PENSION.
2. IF SO, MAY IT BE Il41TUTED BY A MEMBER
OF THE CITY COMMISSION OR BY ANY
OTHER INDIVIDUAL, CITIZEN, RESIDENT OR
TAXPAYER
Subject to the conditions discussed below your first question is answered in the
affirmative and your second question is answered in the negative.
I. FACTS.
Your questions require a brief description of the facts giving rise to the issues set
forth above. The following is a brief summary of such facts.
A. Actions by Cesar Odio
Cesar Odio was employed by the city from January 21, 1980 to September 12,
1996, the date of his resignation. On September 11, 1996, W. Odio was charged with a
criminal complaint which alleged that he "did knowingly conspire and agree to commit an
offense against the United States, that is to violate at least Title 18 U.S.C. Section
666(a)(l)(Axtheft, embezzling, obtaining by fraud or converting funds by a local official
of a government receiving federal funds) and Title 18 U.S.C. Section
1512(b)(3)(Tampering with a witness)." Criminal Complaint, United States of America
v. Cesar Odio; and Jorge De Cardenas. Case Number 96-3425-Palepino, United States
District Court for the Southern District of Florida. See, page 2 of the Firm Report. `
5 ��
Commissioner Tomas galado April 20, 1998
Legal Opinion MIA-98014 City Powers; Pension Granted
Page 2 to Former City Manager Odio
On October 29, 1996, Mr. Odio was'indicted by the Dade County Grand Jury and
charged with "six counts, including conspiracy to commit theft, conversion, fraud, and
money laundering concerning a program receiving federal funds in violation of Title 18
U.S.C. Section 666(a)(1)(A), Title 18 U.S.C. Section 666 and Title 18 U.S.C. Section
1956(a)(1), conspiracy to defraud the people of the City of Miami, Florida, conspiracy to
tamper with a witness and informant, and tampering with a witness and informant in
violation of Title 18 U.S.C. Section 1512(b)(3), and Title 18 United.State Code, Section
2." Indictment, United States of America v. Cesar Odio and Jorge De Cardenas Case
Number 96-0872-CR-FERGUSON, United States District Court for the Southern District
of Florida. See, page 4 of the Firm Report.
On May 28, 1997, a superseding Information was filed charging that Cesar Odio
"did knowingly and willfully corruptly persuade Manohar Surana, and attempt to do so,
with intent to hinder, delay and prevent the communication to a law enforcement officer
of information relating to the commission and possible commission of Federal offenses.
All in violation of Title 18, United States Code, Section 1512(b)(3) and Title 18, United
States Code Section 2." Superseding Information, United States of America v. Cesar
Odio, Case Number 96-0872-CR-FERGUSON, United States District Court for the
Southern District of Florida. See, page 7 of the Firm Report. On May 28, 1997, Cesar
Odio agreed to plead guilty to the Superseding Information and signed a Plea Agreement.
B. City of Miami General Employees' & Sanitation Employees Retirement
Trust
' The City of Miami General Employees' and Sanitation Employees Retirement
Trust ("Trust") is set forth in Chapter 40, Article IV, Division 3 of the City Code. Under
the former Commission -Manager form of government, the court transferred the
administration and management of the Trust from the city to a Board of Trustees. See,
the Amended Final Judgment in the matter of Gates v. City of Miami, (case no. 77-9491;
Circuit Court Dade County, -Florida), and Sections 40-242 and 40-244 of the Code of the
City of Miami, Florida. ("City Code") The nine member Board of Trustees ("Board")
selected in the manner prescribed by Section 40-243 of the City Code are the named
fiduciaries for the Trust, with the duty to hold manage, control and safeguard the Trust
fund. See, Sections 40-243(c) and 40-245(a)(3) Miami City Code. Furthermore, the
Board has the authority to "... prosecute or defend actions, claims or proceedings of any
nature or kind for the protection of fund assets...". See, Section 40-245(a)(4) of the City
Code.
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Commissioner Tomas
Legal Opinion MIA-98014
Page 3
rgalado April 20, 1998
City Powers; Pension Granted
to Former City Manager Odio
C. Actions taken by the Board of Trustees
On December 12, 1997, the Board retained the law firm of Blank, Rigsby &
Meenan, P.A. (the "Finn") to conduct a factual investigation and prepare a report (the
"Report") advising and making recommendations to the Board regarding the eligibility of
former city manager Cesar Odio to receive a pension from the Trust. The Report was
prepared and delivered to theBoard on February 18, 1998. See, enclosed Report and
memorandum dated February 18, 1998, from Blank, Ribsby & Meenan, P.A. Section II
of the Report, found on page 13, contained the Firm's opinion which concluded as
follows:
. . .it is our opinion, based on the facts and law discussed in this report, that Mr.
Odio has been convicted of a specified felony which triggers the application of s.
112.3172(3), Florida Statutes.
The Report also set forth the procedures to be followed for forfeiting Cesar Odio's
pension in accordance with Section 112.3173(5)(a) and Chapter 120 Florida Statutes and
Rule 28-106.111(1), Florida Administrative Code. Finally, Section VII of the Report,
found on page 18, sets forth the Firm's recommendation which concluded that the Board
should inform Mr. Odio and his attorney, that his benefits under the Trust are forfeited as
a result of his conviction and advising him of his right to a hearing concerning same.
A response to the Report was filed on March 19, 1998 by Mr. Odio's counsel Mr.
Mark Herron. See, enclosed Response and memorandum dated March 19, 1998 from
Mark Herron. The Board did not take up this matter until its most recent meeting held on
March 27, 1998. At this meeting, a full Board (8 members present, 1 vacant position)
was present, and after discussion, voted three to five (3 to 5) against a motion to cause the
forfeiture of Cesar Odio's pension. Based on the vote, Mr. Odio's pension was not
forfeited and he continues receiving benefits from the Trust.
D. Applicable Law
The violation proscribed by Section 914.22(1), Florida Statutes is almost identical
to the offense proscribed by Title 18, United States Code, Section 1512(b)(3), to which
Mr. Odio plead guilty. Florida law on forfeiture of public pension benefits is found in
Article II, Section 8(d) of the Florida Constitution which provides: "Any public officer or
employee who is convicted of a felony involving a breach of the public trust shall be
JEM/YWIrd/W349
Commissioner Tomas ..galado April 20, 1998
Legal Opinion MiA-9sot4 City Powers: Pension Granted
Page 4 to Former City Manager Odio
subject to forfeiture of rights and privileges under a public retirement system or pension
plan in such manner as may be provided by Section 112.3173 (3), Florida Statutes,
provides in part that "Any public officer or employee who is convicted of a specified
offense ... shall forfeit all rights and benefits under any public retirement system of
which he or she is a member. . .". Section 112.3173(2)(e), Florida Statutes defines the
term "specified offense" for which conviction results in forfeiture of all public pension
benefits. Section 112.3173(2)(a), Florida Statutes defines the term "conviction" to
include a plea of guilty. In Newman v. State Division of Retirement, 701 So.2d 573,
(Fla. I' DCA 1997), the court held , that conviction of tampering with a witness or
informant would constitute grounds for forfeiture- of retirement benefits of a former
sheriff's pension under section 112.3 173 (2)(e)(6), Florida Statutes.
H. RESPONSES TO QUERIES.
A. Question Number One
In response to your first inquiry, there exist administrative, as well as legal
remedies available to address the subject decision of the Board. The city could pursue an
administrative course of action by requesting the Board to reconsider their previous
action taken concerning Mr. Odio's pension. If the Board chose to reconsider the matter
it should then schedule it to be heard at its next regular meeting following notice to all
interested parties. This course of action would permit the Board to entertain additional
comments from all interested persons, including the city, and to consider whether the
Board itself should file an action for declaratory judgment to determine whether state law
requires the forfeiture of Mr. Odio's pension, as suggested in - the Firm's Report. The
Board, as well as each individual member of the Board, due to their fiduciary duties to
the Trust, clearly have standing to seek a declaratory judgment to clarify their duties and
obligations with respect to Mr. Odio and the application of Section 112.3173(3), Florida
Statutes. See, E.C. Ewing v. Dupree, 104 So.2d 672 (Fla. 2nd DCA 1958), wherein a
declaratory judgment was sought by the board of trustees of the City of Lake Worth
regarding a former employee's rights to retirement benefits. Jurisdiction was accepted by
the court, and the court held that the former city employee, who was convicted of a
crime, was not entitled to benefits. Since the Board has received conflicting legal
positions, and since the vote was by no means unanimous, the Board's request that a
court determine the rights and obligations of the Trust would be appropriate.
If no further action is taken by the Board at its next meeting, or by an individual
member of the Board, the city could consider instituting a declaratory action on its own:
1F:M/YMT/rcUW349
s•
Commissioner Tomas ..galado April 20, 1998
Legal Opinion MIA-98014 City Powers; Pension Granted
Page 5 to Former City Manager Odio
This action could name the Board and Mr. Odio as interested parties. The city, by virtue
of its fiscal responsibilities to the Trust to make expenditures of public funds in the form
of city contributions and actuarial soundness of the Trust may demonstrate standing on
grounds of special economic injury sufficient to pursue a declaratory judgment regarding
the validity of the Board's decision not to forfeit Cesar Odio's pension in light of a
statutory requirement to the contrary. The city has a special interest and standing to
ensure the proper disbursement of public funds in accordance with applicable state laws.
See, Section 40-246(b) Miami'City Code and Chapter 112, Part VII, Florida Statutes. See,
also, Santa Rosa County v. Administration Commission, Division of Administrative
Hearings, 661 So.2d 1190 (Fla. 1995); Branca v. City of Miramar. 634 So.2d 604 (Fla.
1994). ,
B. Question Number Two
Notwithstanding the fact that the Board is charged with the responsibility of
administering the Trust, as discussed above, and in response to your second question, an
individual city commissioner does not have standing to challenge the decision of the
Board of Trustees anymore than a citizen or taxpayer. A citizen, taxpayer, individual
commissioner, or even a member of the Trust, other than a member of the Board, does
not have standing to legally challenge the decision of the Board since these special
individuals could not assert or demonstrate a special injury in the matter separate and
apart from other citizens. Guernsey v. Haley, 107 So.2d 184 (Fla. 2nd DCA 1958),
(where the court held that residents of Sarasota County did not have standing to challenge
state officials actions); Ash v. City of Boca Raton, 133 So.2d 122 (Fla. 2° DCA 1961),
(taxpayer's suit seeking declaratory relief against governing authority was dismissed for
fdilure to show special injury or increase in taxes to plaintiff).
III. CONCLUSION.
There exist administrative as well as legal remedies to address the decision of the
Board of Trustees concerning the granting of former city manager Cesar Odio's pension.
The city, which is responsible for city contributions and the actuarial soundness of the
Trust, has a special interest -and standing to ensure the proper disbursement of public
funds in accordance with applicable state laws. To attempt to amicably resolve this
matter with the Board the city could seek to have a member of the Board move to
reconsider the matter at its next regular meeting scheduled for May 8, 1998, such
reconsideration would permit the Board to entertain additional comments and, possibly,
JEM/YMT/rct/W349
Commissioner Tomas galado April 20, 1998
Legal Opinion MIA-98014 City Powers; Pension Granted
Page 6 to Former City Manager Odio
consider whether the Board should file a declaratory action to determine whether state
law absolutely requires the forfeiture of Mi. Odio's pension. Alternatively, if the Board
chooses not to act at its next meeting, and no individual Board member chooses to act,
the city could consider instituting its own declaratory action and name the Board and Mr.
Odio as interested parties.
12zl�
Yami
c: Honorable Mayor and Members
of the City Commission
Jose Garcia -Pedrosa, City Manager
1EM/YMT/rcUW349
REVIEWED AND APPROVED BY:
ael O. az
Deputy City Atto
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1 >-S6US1t*f--
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MARK HMON
A xc AA=tt d M Gwr&
?ARK HERkVr', r�'.A.
ATTORNEY AT LAW
2 I O SOww MOPIMM 9TOW. SUM 200-A
Tea, RLOR" 32301
1
050) 507r070
Te"Cavr (050) 5e 1 -0754
March 19, 1998
Sandra Elenberg, Administrator ft Fe 1
City of Miami General Employees' and
Sanitation Employees' Retirement Trust
1000 Brickell Avenue, Suite 1010
Miiami, FL 33231-3014
Re:
Dear Ms. Elenberg.
Cesar Odio Matter
Please find enclosed a revised Response to the Report of Factual Investigation and
Reeommcndafioa Regarding the F.ligiNity of Cesar Olio for Pension Benefits from the City of Miami
General Employees' and Sanitation Employees' Retirement Trust previously submitted to the Board
by the Blank, Rigsby and Meenan, PA law firm submitted on behalf of Cesar Odio. ,
I have spoken with Phil Blank regarding this revised response. I inadvertently attached a prior
version of the response to my letter of March 17, 1998. This final version should have been attached
in its stead. Mr. Blank indicated that he had no objection to the submission of this revised response.
If you have any questions or concerns, please
MH/bjd
Enclosure
cc: Ronald I. Cohen, Esquire
Philip F. Blank, Esquire
Ron Silver, Esquire (Hand Deliver)
NWA 43-1
me know.
XT*-
Herron
A
RESPONSE TO
REPORT OF "FACTUAL INVESTIGATION AND RECOWW ENDATION
REGARDING THE ELIGIBIIITY OF CESAR ODIO FOR PENSION BENEFITS
FROM THE
CITY OF MIAMI GENERAL EMPLOYEES' AND SANITATION
EMPLOYEES' RETIREMENT TRUST"
March 17, 1998
MARK HERRON
Mark Herron, P.A.
216 South Monroe Street
Suite 200-A
Tallahassee, FL 32301
(850)567-4878
��sC
The sole question before the Roard at this time is whethcr the Board should give notice to
Cesar Odio that his retirement benefits under the City of Miami General Employees' and Sanitation -
Employees' Retirement Trust have been forfeited because of Mr. Odio's conviction of obstructing
justice in violation of Title 18, United States Code, Section 1512(b)(3).
Forfeiture is a severe penalty sanction that is not favored in law. If forfeiture is to be
considered by the Board, there must be substantial legal grounds to do so. Substantial grounds are
not present to Mr. Odio's case. In making its determination, the Board must look carefully at
Section 112.3173, Florida Statufes. This is the only law that provides for forfeiture of pension that
is applicable to this case.
Section 112.3173(3), F.S., provides for the forfeiture of public retirement benefits for any
public employee or officer who is convicted of a "specified offense." It defines "specified offense"
to include:
6. The communing of any felo y by a Dublic officer or employee
who, willfully and with intent to defiaud the public or the public
agency for which he or she is employed of the right to receive the
faithful performance of his or her duty as a public officer or
employee, realizes or obtains, or attempts to realize or obtain, a profit,
gain or advantage for himself or herself or for some other person
(Emphasis added.]
It is clear beyond dispute that Mr. Odio was not convicted of any such "specified offense."
The report that the Board received from the law firm of Blank, Rigsby and Meenan, P.A.,
is wrong, based on the undisputed facts and applicable law. Specifically:
1. A fundamental'premise of the report is that "Mr. Odio has admitted he used his
position as City Man&= to direct an employee of the City of Miami to make false statements to law
enforcement officers..." (p. 10, emphasis added]. Mr. Odio never made any such admission, and
the report cites nothing to buttress its conclusion that "he used his position as City Manager" on
August 27, 1996.
2. Portions of the report concerning the original indictment, which charged a variety of
offenses [pp. 3-6], are completely irrelevant to this proceeding. The original indictment'does not
constitute evidence or determination by any court. Citation in the report is misleading and
prejudicial as only a conviction satisfies the requirements of the forfeiture statute.
Indeed, the United States dU=&jW with prejudice (meaning on the merits), that indictment.
Any conversations between Mr. Odio and Jorge DeCardenas referenced in the original indictment
and included in the report are irrelevant.
3. Mr. Odio pled guilty to a superseding information indictment that charges he
committed a crime on August 27, 1996 when he attempted to persuade Manohar Surana not to tell
a law enforcement officer certain information. Only that conviction and the events of that tiay can
be considered by the Board in deciding to initiate pension forfeiture proceedings.
4. The report misapplies the "elements test" of Shields v. Smith (404 So.2d 1106 Fla.
1 st-DCA 1981). Shields v Smith requires that the board focus on the acts for which Mr. Odio was
convicted. Those portions of the report which focus on allegations contained in the original
indictment fail to address the issue before the Board. The issue before the Board are the acts of Mr.
Odio on August 27, 19%. These are the acts for which Mr. Odio was convicted.
S. The report erroneously relies on the case of Newman v State, Division of Retirement
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22 Fla. L. Weekly D2217 (Fla. 1st DCA 1997), and fails to distinguish the critical facts set forth
therein. Newman was the Sheriff of Baker County. As Sheriff, Newman was aware of
confidential investigation concerning drug trafficking. Newman provided this confidential
information to drug traffickers. Newman acquired knowledge of the ongoing law enforcement
activities because of his position as Sheriff and he expressly used that information and his position
to obstruct justice. Discussing this crucial point, the Court stated "...the acts committed by
[Newman] in furtherance of the offense of which he was convicted, conspiracy to obstruct justice,
were inseparately intertwined with his position as Sheriff."
Newmann thus stands for the proposition that a federal conviction for obstruction of justice
= be a specified offense. It emphatically does not mean that all convictions of obstruction of
justice are specified offenses, as the Blank report appears to conclude.
Moreover, there is a critical factual distinction between Newman and the present matter.
Newman used his official position to obstruct justice; Mr. Odio did not. The Newman plea
agreement provided that Newman was using his official position as Sheriff to obtain inf9nmation
about law enforcement activities and to use that information to obstruct justice. Mr. Odio's
conviction for obstruction of justice did not involve any use of his official position to obstruct
justice. He did not utilize any confidential information or other unique tools that he possessed as
a result of his position to commit the obstruction of justice.
� 1V
6. Review of the transcript of the tape-recorded conversations held on August 27,
between Mr. Odio and MIr Surana reveals only anxious requests, repetitive questions, and emotional
appeals based on friendship and long acquaintance. They do not reveal any use of Mr. Odio's
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position or authority to commit the obstruction of justice to which Mr. Odio pled guilty.
The statute under which the Blank report recommends forfeiture of Mr. Odio's pension
provides that before the forfeiture can take place, the conviction must be "through the use or
attempted use of the power, rights, privileges or duties of the position of his or her public office or
employment position." A careful reading of the report demonstrates that the requirements of the
statute have not been met.
Mr. Odio was first employed by the City of Miami on January 21,1980. On that same date,
he began participating and making contributions to the Trust. He resigned on September 12,1996,
after almost 17 years of service to the City of Miami. He is fully vested and is eligible to receive,
and his family has been receiving, a pension.
Before the Board can order a hearing on a forfeiture, it must have some evidence to conclude
that Mr. Odio was using his official position to commit a specified offense. There is none. Without
that evidence, the Board caanot conclude that Mr. Olio's behavior falls within the parameter of the
specified statute. Indeed, all of the evidence that this Board can consider shows conclusively that
on August 27,1996 W. Odio did not use his official position to obstruct justice.
The Board should close this matter without further proceedings.
4
ISu�s
5
BLANK, RIGSE
ATTOFLNEYS AT LAW
OJfce Address:
204 SOUTH MONROE STREET
TALLAHASSEE. FLORIDA 32301
(850)681-6710
& MEENAN, P.A.
Ma ding Addrew
POST OFFICE BOX 11068
TALLAHASSEE, FLORIDA 32302.3068
FACSIMILE (850) 681.6713
E-Mai): PostmasterOBRMF;rm com
MEMORANDUM
TO: Members, Board of Trustees
City of Miami General Employees'
and Sanitation Employees' Retirement Trust
FROM: F. Philip Blank
Blank, Rigsby & Meenan, P.A.
DATE: February 18, 1998
F. PHILIP BLANK*
WErDY A. DE.VECCHIO
A. KENNETH LEVINE
THOMAS R. McSWAIN
TIMOTHY ). MEENAN
R. TERRY RIGSBY
TIMOTHY G. SCHMWALDER
GEOFFREY D. SMITH
LEGAL ASSISTANT
)OH N A. DICKSON, J.D.
•Flay. a<C4mAW A Hm" L�
Attached, per your direction, please find our factual report and recommendations retarding
the eligibility of Cesar Odio for pension benefits from the City of Miami General, Employees' and
Sanitation Employees' Retirement Trust.
If you have any questions, please let me know.
ma t�)wv.=w
�sGuS�I.
i
1
Report_of Factual Investigation and Recommendation
Regarding the Eligibility of Cesar Odio for Pension Benefits
from the
City of Miami General Employees' and Sanitation Employees' Retirement Trust
February 19, 1"S
Blank, Rigsby & Meenan, P.A.
204 S. Monroe Street
Tallahassee, Florida 32302 -
(850) 681-6710
r
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Report of Factual Investigation and Recommendation
Regarding the Eligibility of Cesar Odio for Pension Benefits
from the
City of Miami General Employees' and Sanitation Employees' Retirement Trust
The City of Miami General Employees' and Sanitation Employees Retirement Tnist (the
"Trust") retained Blank, Rigsby & meeaan, P.A. on December 12, 1997, to conduct a factual
investigation, prepare a report to the Board of Trustees, and make recommendations regarding
the eligibility of Cesar Odio to receive a pension from the Trust.
We asked Mr. Odio's attorney, Ronald J. Cohen, to submit information to us for inclusion
in this report. This is further detailed in Section VI of this report.
Based on the facts and law discussed in this report, it is our opinion that
Mr. Odio has been convicted of a "specified offense" triggering the forfeiture of
his retirement benefits from the Trust. The Administrator should send a letter to
Mr. Odin informing him that his bewfits under the Trust have been forfeited due
to his conviction £or violation of Title 18 United States Code, s. 1512(b)(3) and
informing Mr. Odio of his right to a hearing pursuant to Chapter 120, Florida
Statutes.
Lot r! si, -
1. Cesar Odio was employed by the City of Miami on January 21, 1980, as an
assistant city manager. Mr. Odio became city manager of the City of Muarmi on December 16,
1985. Mr. Odio began participation in the City of Nfard General Employees' and Sanitation
Employees' Retirement Trust (hereinafter the "Trust") on January 21, 1980. Mr. Odio's pension
rights under the Trust vested on January 21, 1990. Mr. Odio resigned as city manager on
September 12, 1996.
2. The Charter of the City of Maori Over the city maaageer the Dons and duty:
(a) . To see that the laws auk ordiomm ara. a&-
(b) To appoint and remoM except as hrdn pwvidod, all Owe s of
the departments and ali subordinate officers and employees in the departments in
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both the classified and unclassified service; all appointments to be upon merit and
fitness alone, and in the classified service all appointments and removals to be
subject to the civil service provisions of this charter.
City of Whmi Charter, § 16(a) and (b). See Tab 1.
3. The City of Miami's unclassified service includes "the city manager, his assistants
and secretarial staff."
City of Miami Charter, §36(cXIXA). See Tab 2.
A. The CrlminA Complaint. Indictment and Superseding Information Against Cesar Odio
4. On September 11, 1996, Mr. Odio and Jorge De Cardenas were charged with:
knowingly conspire and agree to commit an offense against the United States, that
is to violate at least Title 18 U.S.C. Section 666(axl)(A) (theft, embezzling,
obtaining by fraud or converting funds by a local-offrcial of a government receiving
federal funds) and Title 18 U.S.C. Sectiou_1512(bx3) (Tampering i ith a witness).
Criminal Complaint, United 5= of America v_ CM Odio- and Jorge De Cardenas, Case
Number 96-3425-Palepmo, United States District Court for the Southern District of Florida, filed
September 11, 1996. (Hereinafter referred to as the "Criminal Complaint") A certified copy of
the Criminal Complaint with the accompanying Affidavit which was filed with the Clerk of the
United States District Court for the Southern District of Florida is attached. See Tab 3, page 1.
5. The Affidavit attached to the Criminal Complaint provides an overview of the
conspiracy with which Messrs. Odio and De Cardenas were charged:
Between in or about June, 1996, and in. or about August, 1996, with certain critical
events and facts transpiring prior to that period of time, a criminal agreement and
understanding was entered into between ODIO and DE CARDENAS to convert,
embezzle, steal and otherwise utilize city funds for personal use and gain. ODIO
and DE CARDENAS acted in this regard with Surana, whom they believed to be a
participant in the unlawful activity, and did not know to be cooperating with law
enforcement. In summary, ODIO and De CARDENAS agreed to take and share
City monies ODIO arranged to be transferred to De CARDENAS through an
otherwise legitimate business relationship between the City and Cigna_
Specifically, ODIO arranged for DE CARDENAS and his marketing company to
be hired by Cigna as a marketing consultant, though neither- the City nor Cigna in
fact required the services of such a consultant. ODIO, through his powers as City
Manager, arranged for DE CARDENAS and his marketing company to receive
S12,500, funded by the City, monthly for the duration of a worker's compensation
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contract between the City and Cigna. ODIO and DE CARDENAS agreed that DE
CARDENAS would kick back to ODIO Wle of a $ 10,000 portion of the monthly
payment, with DE CARDENAS retaining the other 50% of the $10,000 portion,
and the remainder of the monthly payment going to Surana. ODIO further took a
number of precautionary measur a to ensure the confidentiality of the agreement,
all to protect this agreement from public disclosure. These measures included
uus�v ' s Surana to hide and destroy docuwM +on relating to this aareertOw* . .
the fisudulent use of Cigna and DE CARDENAS's company to transfer money
back to ODIO, and the planned use of foreign corporations and bank accounts to
hide and conceal ODIO's share of the monies. Late in the criminal investigation of
this matter, DE CARDENAS was approached by the Federal Bureau of
hw atigation ("FBI") and asked to cooperate. After DE CARDENAS told the
FBI that he wished to cooperate in the continuing investigation of ODIO, the FBI
gave DE CARDENAS certain instructions, including not to disclose the
investigation to ODIO and others. Thered"%r, DE CARDENAS caused ODIO to
be warned of the investigation, and ODIO and DE CARDENAS took steps to
obstruct and thwart the investigon
(Emphasis added.) I I I of the Criminal Complaint, pages 3-5.
6. The Affidavit attached to the Criminal Complaint describes the following 5rts
regarding certain acts which gave rise to the charges filed against Messrs. Odw and De Cardenas:
37. On or about August 26, 1996, DE CARDENAS was approached•
by the FBL Afta consulting with a lawyer, DE CARDENAS acid he would
cooperate with law enforcement in this matter, to include the tape recording of a ,
meeting with ODIO the new day. DE CARDENAS acknowledged that disclosure
of the law enforcement investigation would compromise it. Nevertheless, DE
CARDENAS thereafter took steps, contrary to his purported cooperation with law
enforcement, to warn Odic of the ongoing undercover investigation.
38. On the morning of August 27, 1996, ODIO told De CARDENAS
that someone in his office had received a telephone call from a supposedly
unimown female that morning who warned ODIO not to accept anything from
JORGE DE CARDENAS. Thereafter ODIO and DE CARDENAS met at DE
CARDENAS' house and, in a conversation recorded by the FBI, Odio, made
statements to conceal thekD[10[D&L F
this meeting. ODIO met with Susan and wow9aw SurankVM=FMVAUNNL Which
cencernin¢ m FBI
1
Sunma denied. ODIO told Susan that DE t',ARDENAS..M&dhu""Mi rK We
(DE CARDENAS') wife, to call sae io the mocmeg bwuts x wsa 90*t4.bP- .t
taped in his houm so he did me a firvor."
3
.� i. _ i it . �i •t �i ..r =7r, r • r•.r
.• •r • �� .� i 1 .i . Y ! 1 r n • r
�r l•1 I� a• •�• r• r•;n . ._Iri,rr • • r -' yl.• • r� ., •�•�.. 1i•
-67
v•fr{•1.•-!
(Emphasis added.) IN 37-39 of the Affidavit attached to the Criminal Complaint, Pages 14 and
15.
7. In an Indictment filed on October 29, 1996, the Grand -Jury, at Dade County, in the
Southern District of Florida and elsewiwre, charged Messrs. Odio and De Cardenas with six
counts, including conspiracy to commit theft, conversion, fraud, and money laundering concerning
a program receiving fiedaal fiords in violations of Title 19, United States Code, Section
666(aXIXAX T91e 18 United States Code, Section 666 and Title 18, United States Code, Section
1"6(aXI), conspiracy to defrwd the people ofthe City of Miami, Florida, conspiracy to tamper
with a witness and informant, and tampering with a witness and informant in violation of Title 18
,
-Ib
mted States Code, SeWon 15 12(b)(3) and Title 18 United States Code, Section 2.
Indictment, United States of America v. Cesar Odio and Jorge De Cardenas. filed October 29,
1996, in the United States District Court for the Southern District of Florida, Case Number 96-
0872-CR FERGUSON, pages 1, 2, 8, 11, 13 and 14. (Hereinafter referred to as the
"Lx ictment.") A certified copy of the Indictment which was filed with the Clerk of the United
States District Court for the Southern District of Florida is attached. See Tab 4.
S. The General Allegations for Count I of the Indictment (Conspiracy to commit
theft, conversion, fiwd, and money laundering cog a program receiving federal funds)
allege:
2. Defendant CESAR ODIO (hereinafter "ODIO") was the City Manager for
the City of Miami (hereinafter "City"). As City Manager, ODIO was responsible
for the daily operations and management of the City.
ODIO's conduct as City Manager was regulated by the Florida Code of
i
r
Ethics and Florida Statutes, including §§ 112.313 and 112.3143, which in
substance prohibited ODIO from having any personal financial interest in the
outcome of any official action taken by him.
8. Manohar Surana (hereinafter "Scream") was the Assistant City Manager for
the City. As Assistant City Manager, Surana administered the City's budget,
procurement and finance operations under the supervision of the City Manager.
S, and 8 of the Indict at pages 2 and 3. Please see the Indictment wader Tab 4.
•S
9. The Count V of the Indictment (Conspiracy to Tamper with a Witness
.Wormant) alleges: � r
General AHANdons
40. On or about August 26, 1996, DE CARDENAS was confronted by the
Federal Bureau of Investigation (hereinafter -FBI') concerning the mission of
a federal criminal offense, which criminal conduct as outlined in paragraphs 2
through 30 of Carat I of the Indictment, which paragraphs are realleged and
in — rporated herein in this Count of the Indictment,
41. Afta consulting with a lawyer, DE CARDENAS said he would 000paate
with law eaft cement and was advised that disdosure of the ongoing law
mforcmmeat inveatiigation would compromise it. DE CARDENAS adasowledged
this and stated that he would not disclose the ongoing urv%Rm *gation.
42. On or about August 27, 1996, DE CARDENAS took steps to warn ODIO'
Of the ongoing criminal investigation.
Owed of the Consoiracv
43. It was an Wed ofthe =Xlba for ODIO and DE CARDENAS IQ
gMhCg= the silence. denial and misleading of RMM knowl2d2nbk
ofthetrueficts abouttheirmmhWconduct.•as to .:l ml 11 disclosure of the
tolawenforcementand to tit ! ,!..!!.'.ft (•i C' c• 1,.! I.•
Onn Acts
45. In the II • 11 • 1 or about 11
ODIO ad DE CARDENAS at DE CARDENAS' house, ODIO and DE
CAXEMKAS made h1se kenos damped to coverup and conceal from law
s>ti'o�e�oearsat their criminal Conduct.
an or about. CARDENAS spin met
•r 1'1 • ad Wid. •D• a more detailthatdwe was an on-gowg law
CARDENAS' house "or; that • • •wasr • to call • CARDENAS 1
nwe, and that DE CARDENAS had x=ged a warning call to OD10 earlier that
47. Still later that day, on or about August 27, 1996,
AW told Suran& Am= other bW: that Sursna Amid d= that he or OD10
• • • •1 � 1[ 1.. 1:• 1_:1 11: ! � .},•. . • • n • it :/! ! • • • •.�- yl.•
(Emphasis added.) IM40 47 of the Indict at pages 11-13. Please see the Indictment under
Tab 4.
'. 10. Count VI of the Indictment (Tampering with a Witness and Informant) alleges:
49. The allegations of paragraphs 2 through 30 of Count I of the Indictment,
and paragraphs 40 through 47 of Count V of the Indictment, are realleged and
incorporated herein in this Count of the Indictment.
49. On or about August 27, 1996, at Dade County, in the Southern District of
Florida, and dwwhere, the defendants
CESAR ODIO, and
JORGE DE CARDENAS,
did kngmdn& and willfully attempt to corrup* gg3ode Manohar Surana with
the intent to hinder, delay and prevent the communication to a law enforcement
officer of information relating to the commission and possible commissioner of
Federal offenses, all in violation of Title IS. United States Code. Section
P
1 S 12QOW and Title 18, United States Code, Section 2.
IN49 and 49 of the Indictment at pages 13 and 14. Please see the Indictment under Tab 4.
11. In a Superseding Information filed on Nfty 28, 1997, the United States charged
that Cesar1 •
• with 1 1 Mm/l^tt the communication to a _.w
enforcement Officer Of information mhfmg to the commission and pgssible
commission of Federal offenses.
All in violation of Title 18. United States Code, Section 1512M) and Title IS,
United States Code Section 2.
(Emphasis added.) Superseding Information, United States of America v. Cesar Odio, Case
} Number 96-0872-CR MOORE, United States District Court for the Southern District of Florida,
filed May 29, 1997. A certified copy of the Superseding Information which was filed with the
Clerk of the United States District Court for the Southern District of Florida is attached. See Tab
s.
e
12. On May 28, 1997, Cesar Odio agreed to "plead gudty to a superxding
Information which charges the defendant with obstnsation of justice m violation of T'stk 18,
United States Code, Section 15 12(bx3)." The Plea Agreement was signed by Mr. Odio, his
attorneys Donald I. Bierman and Edward R. Shohat, and Assistant United States Attorneys Mary T
K Butler and Lawrence D. LaVecchio.
Plea Agreement, United States of America v. Cesar Odio, United States District Court for
the Southern District of Florida, Case Number 96-0872-CR MOORE. A certified copy of the
Plea Agreement and attached Agreed Statement of Facts which was filed with the Clerk of the
United States District Court for the Southern District of Florida is attached. See Tab 6.
13. The Agreed Statement of Facts attached to the Plea Agreement specifies that:
1. Beginning in or about March, 1996, the Federal Bureau of Invadgation
commenced an undercover in Pgstion into the alleged unlawful diversion of C'sty
of Miami funds to Dekndant Jorge DeCardenas and others. These paymeea,
which began in October, 19%, were characterized as oo "to* fees to the City of
Miami rdating to a group health inwrance contract entered into between the City
of Miami and CIC KA Inwrance Companies. The payments to DeCardenes wew
made through a Miami be alled hand dt Associates. Hand dt Associates -was
7
PLOW90ROM
7j�i'
designated the agent of record for the City pursuant to an agreement signed by
Cesar Odio as City Manager on November 10, 1994, effective October 1, 1994,
«which Odio believed to have been pmmously authorized by the City Commission.
The FBI had information that no legitimate work was performed for the City of
Wkni by DeCar+dmas a: of March, 1996, although he had received $3,500 per
month for at least 18 months. The FBI was investigating whether any of these
payments were, in tuvq unlawfully shared with any public officials.
2. The aforesaid undercover investigation was expanded. During this
investigation, Assistant City Manager Manohar Surana, acting under the direction
of the FBI; surreptitiously tape recorded Jorge DeCardenas, Cesar Odio and others
as they engaged in discussions concerning the award of a city contact to a
subsidiary of CIGNA. This pending contract was to provide for managed care
services in confection with the City's workers compensation program. In some
these conversations eras and Odio discussed with Surana the award of
!fees to DeCardenas relating to CIGNA's arauisition of this contract
and concomitant &wjdal ernimerations which would flow to DeCardenas and
Odio in connection therewith.
3. On or about August 26, 1996, Jorge DeCardenas was approached by FBI
agents and agreed to meet with them. At the FBI office, in the presence of his
wife, son and his lawyer, DeCardenas executed a waiver of rights which provided,
among other things, that he would cooperate with the FBI and the United States
Attorneys Office in an effort to continue the' into the above matter.
Before leaving the FBI that evening, DeCardenas and his family members were
specifically instructed not to disclose this investigation or their contact with the
FBI to anyone, including especially Cesar Odio. DeCardenas was also advised that
he should avoid all contact with Odio but that if Odio contacted him, DeCardenas
should contact the FBI immediately to discuss it. DeCardenas and his family
members were also advised that any exposure of the ongoing investigation by them
could constitute obstruction of justice.
4. On August 27, 1996, at approximately 10:40 am., a woman who would
not identify herself called Cesar Odio's cellular phone which was in his office in
City Ball, spoke to a secretary, and stated that she was a &fend of Odio's and that
Cesar should not accept anything from Jorge DeCardenas. Odio immediately
called DeCardenas to discuss the phone call. Both denied knowing the source of
the call and neither admitted its import. After sing with DeCardenas. Odio
called Surana to discuss the call.
5. Within a few minutes, at the direction of the FBI, DeCardenas called Odio
and invited him to come to his house. Odio went to DeCardenas' residence in the
company of his chief of staff, Christina Cuervo. Odio and Cuervo had been en
8
route to a meeting in Coral Gables regarding possible uses of the Orange Bowl.
The three discussed other matters until DeCardenas asked Ms. Cuervo to step
outside of their presence, whereupon DeCardenas offered Odio an unspecified sum
of cash, stating that Manohar Surana had called and said that Odio needed money.
Odio denied having asked for money.
6. After Odio left the DeCardenas residence, telephoned he tel honed DeCardenas. In
direct violation of the FBI's instructions to DeCardenas, and without the FBI
agents' knowledge, DeCardenas asked where Odio was and agreed to meet him.
7. • • • and Demdenas,11..E 1 the •• ouWde,of Alhambra I Y
Coral Gables,Florida. • • • advised Chiitina Cuervo, 1.• had • _.I
waiting • nearby 1 her carduring Odio's conversation 1 DeCardenas, that
Cardenas had stated that Surana was cooperating with the FBI in an * estigation
of Odio, that what Odio had said in the house earlier that day was fine, that Odio
1 • • 1 •callhim again and DeCardenas had 1 • • 11 his wife Mariato call
• 1 • that morning.
S. Within approximately 15 minutes,- Odio called Surana and directed him.W
meet at 225 Alhambra Circle. S . J and brig& joined the malfing
qMgm Mgarding the Oranga Bowl. Odio then dinx:ted Surana to leave the
gf•1} and • 11 him in an 1 : fenIt • Ilw o •J •1\• ,•I}1 .1 1\ Ji minutes,OffikL
v• }}I}Ii n Y.0 1,• in MM and 1d . I\ -• toSurana about his\- .=n •
•�� [• -I and Insinvolvement in CIGNA •c!•,..Yscheme.O• •asked
1- 1 . 1 1e }'' \:! \ft •r/.! or was othermise g•�•R&c.I.11''• with
the law enfon=ent A&= advised him that DeCardenas had stated that Surang
was ==Ifmg and said that DeCardenas had stated that Surana, was
and said that DeCardenas told Odio that he had his wik Maria, call him and _1
him that he wasgoing to / : • _1 1 his house that morning, thusdoing • • f
favor.
9. 1 • e1 _1 being involvedas acooperator 11 1 FBI investigation.
3.
71 \eW} •d• • • 1Surana,both inthe conferenceroom } and • 1 1, caron 1
My back to the Chy's Offices in the River�de BuildinsL to falmlyA= Odin
and Surana had ever AgmW to no= from AM=. Odio also told
Surana to falmly dM that he and Surana had rw directed that DeCardenas
hired as a consuftwt to CIGNA and that DeCardenas was to divide the M=M
with O• • 3nfirmed that \ t� i had •:•i•la :' i Ilt
dommeals
`•/11 1 had •J\O/\•. 1 b.e-'I '11W •X 01 .• •./1.1 \'tt`\' 1.•' . lber-
CIGNA
I(. 1 •.;•�1_•,I.--act
Y•;;\�_�.•.i•�•,1.. './lryiu li •tii.' .t,-•e 0.
fift
=WWMam that 1.- I • • d. SWIM •.of that •tN.•:-.IJ }1\ •. for • .
ardwas told i l i that the 1 tape of -nos i t 1 i r l
i
•
ca/Bsir.r.a�.ed to be fiv. (thouaend).
Odio fiuther he believed he was bang "set up" and that he was
adremely upset.
(Emphasis added.) IN 1-10, Agreed Statement of Facts attached to the Plea Agreement.
14. To summarize, Mr. Odio has admitted he used his position as City Manager to f=
direct an employee.of the City of Miami to make false statements to law enforcement agents in an
stteanpt to gain a benefit or advantage for himself; i.e., the avoidance of prosecution for bribery.
15. According to the Plea Agreement aigned by Mr. Odio, W. Odio plead guilty to a
violation of Title 18, United States Code, Section 1512(b)(3). This statute provides:
(b) Whoever lmowingly uses intimidation or physical force~, threatens,
or corniptly persuades another person, or attempts to do so, or engages in
misleading conduct toward another person, with intent to --
(3) hinder, delay, or prevent the communication to a law enforcement
officer or judge of the United States of information relating to the commission or
possible commission of a Federal offense or a violation of conditions of probation,
parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than ten years, or both.
See Tab 7.
;I =i rV r7771A - _ TV CMPT i
16. Section 914.22(1), F.S., is almost identical to the offense prescribed in Title 18,
United State Code, Section 1512(bx3), the offense to which W. Odio plead guilty.
17. Section 914.22(1), Florida Statutes, specifies the elements of tampering with a
10
violationwitness. A .1under
provides:Florida Statutes,
►.^F! t who let! ' /.1 ' uses intimidation or Rhyical •rc•
threatens another Rm 1 or S -1111►1. to do • or 'iconduct
toward another RWg& or • • aF g_gIli . I benefit or v. t to another ►.-rF!11 with
(e) Hinder. delay. or_flre = the communication to a law enforcement
officer or Wo of in&rmsfion ndmdng to the oommi:sion or gQssible commission
of an offense or a violation of a condition of MhaiaL WDIL or release Mft
8 judicial orooee&S or
(1) Testify untruthfully in an official investigation or an official proceeding,
i
commits a WW of the third degree, punishable as provided in s. 775.082, s.
1 775.083, or L 775.084.
(Emphasis added.) See Tab S.
D. Florida IAw on Forfeiture of Public Pension Dendift
18. Article A s. 8(d) of the Florida Constitution provides:
Any public officer or employee who is convicted of a felony involving a breach of
the public trust shall be subject to forfeiture of rights and privileges under a public.
retirtrseat system or pension plan in such manner as may be provided by law.
See Tab 9.
i19. Effective July 1, 1984, the Legislature enacted s. 112 3173, Florida Statues, to
implement the provisions of Article U, section 8(d). Section 112.3173(3), Florida Statutes,
provides:
(3 —Wwor
whose office or employment
terninsted toy AnIM of Ws or her admitted Wmm nwk aid or abetment
under any pdok netam +emt.
�whicb she is a n>ember .her .= - = - ,
as ofthe dace oftermmatica. • = j
This law makes forPeitm all public rP thremeat beoedts mandatory R*mytp Okempivyee or
' 11
' n o A 6)
offense in question is a disabling crime under the forum's owns laws See
generally The Collateral Consequences of a Criminal Conviction, 23
Vand.L.Rev.929 (1970). Justification aside, this analysis is plainly required by our
Constitution's Article X, Section 10, definition of "the term felony."
(Emphasis added.) See Tab 11.
23. In bdr. Olio's case, the offense for which hft. Odio was convicted is virtually
identical to the offense prescribed in s. 914.22(11 Florida Statutes. A violation of I.914.22(1),
j Florida Statutes, is a third degree felony.
i 24. In Newmann v. State. Division of Retirement 22 Fla. L. Weekly D2217, (Fla, i st
D.C.A. 1997), the former sheriff of Baker County plead guilty to one count of a federal
indictment for obstruction of justice, specifically Title 18, United States Code, Section
1 S 12(bX3), the same offense to which Mr. Odio plead guilty. Newman was involved in a
conspiracy to violate the Comprehensive Drug Abuse and Control Act. He provided information
] to drug traffickers regarding law enforcement efforts, encouraged others to rimepresent facts and
! provide Use statements to law enforcement officers, provided funds to an individual for attorneys
fees who was involved in the conspiracy, and advised this 'individual to deny knowledge of the
payment Newmann made on behalf of the person In a proceeding initiated by the Division of
Retirement, pursuant to a. 121.09(5Xf) and 112.3173, F.S., the Fnst District Cqumrt held, at page
2220,:
conclude that the
[V�e acts set forth in Cain V of the federal indictment and Lin
the factual basis to the plea agreement satisfy time dements of tampering with a
witness or informant pursuant to s. 914.22, Florida Statutes, not conspiracy to ,
tamper with a witness as asserted by the appellant Tames with a witness or
informant is a third d � under Florida law, and a conviction of that
offense in a Florida court would constitute g=g& for finfeiture of retirement
benefits under section 112.3173(2)(0.- Florida Statutes,
rEmphasis added.) See Tab 12.
M Qvinio !
25. Accordingly, it is our opinion, based on the fads and law discussed in this report,
' that Mr. Odic has bum couvic ted of a specified f6kMy which triggcts the applietion ofs.
112.3173(3), Florida Statutaa.
1
�j
D
26. Section 112.3173(3Xa), P.S, specifies the procedure which Ulm be Endowed by
the Board when k beliria the rights sod pdvilepes of a pez pint in dte-'hurt am
13
ISCA4 S�
;+squired so be fotbse4 sunder L, IU.3173. F.S.:
C'C3 �, . s;, .., I beona tie Baal or bard rmoo:ible for D -Yina the
reeeKw notice pursuant to subsection
or oOwwisa bnreason to beGere tb■t the ri��ts and on WM of anv xenon
under this section msh official or
board sbdl aM n=in ao 20GU a with dum 120 for the
pxposa of -11- whether such dots and pdvftu are required to be
Ixfo red. orbQIW and * are
required to be forfeited_ the official or board shall order such risW and offin't es
(Emphasis added.)
27. Based on this statute, the Board must provide notice to Mr. Odio regarding the
Potential app>icxtion of s. 112.3173, F.S., to him and must hold a hearing "in accordance with
chapter 120." In any proceeding under chapter 120, F.S., the uniform rules of procedure would
apply. Section 120.54(5J Florida Statutes, requires each "agency" subject to chapter 120 to
oo®ply with the uniform rules of procedure adopted by the Administration Commission. Rule
Chapter 28-106, Florida Administrative Code, governs decisions determining substantial interests.
See Tab 13.
23. Rule28-106.11 l(1J Florida Administrative Code, requires that a notice of agency
decision must contain the inforn stion required pursuant to s. 120.569(11 Florida Statutes, and
must advise whether medistion under s. 120.573, Florida Statutes, is available and, if available,
that pursuit of mediation will not adversely affect the right to administrative proceedings in the
event mediation does not result in a settlement. '
29. Section 120.569(1), Florida Statutes, provides:
The provisions of this section apply in all proceedings in which the substantial
interests of a party are determined by an agency, unless the parties are proceeding
under s. 120.573 or s. 120.574. Unless waived by all parties, s. 120.57(1) applies
whenever the proceeding involves a disputed issue of material fact. Unless
otherwise agreed, s. 120.57(2) applies in all other cases. Parties shall be notified
of any order, including a final order. Unless waived. a cm of the order shall be
delivered or mailed to each, poor the MM s attorney of record at the add= of
record. Each notice shall inform the reaiRient of any administrative hearing or
judicial review that is available under this motion. a. 120,57, ors 120 68• shall
indicate the nrw&dure which must be followed to obtain the beano g or,judicial
review: and shall state the time limits which annly.
(Emphasis added.) See Tab 14 (s. 120.569, Florida Statutes) and Tab 15 (s. 120.57, Florida
14
I)ISWS41;
n A Q A
Statutes).
30. Accordingly, prior to determining whether Mr. Odio's rights to any pension
benefits from the City of Miami General Employees' and Sanitation Employees' Retirement Trust
are forfeit pursuant to s. 112.3173(3), Florida Statutes, the Board must give notice and hold a
hearing pursuant to Chapter 120, Florida Statutes. Under Rule 28-106.111(4� F.A.C., a person
who receives written notice of an agency's intended decision and who fails to file a written
request for a hearing or mediation within 21 days waives the right to request a hearing or
mediation.
31. A letter should be seat to Mr. Odio at the most current address which the Trust
has for him. In addition, a copy of the letter to W. Odio should be seat to Mr. Odio's attorney of
record in this matter, Ronald J. Coiim Ronald J. Cohen, P.A., Brickeli Bayview Centre, 80 S.W.
8th Street, Suite 1910, bfmni, Florida 33130. Both letters should be mailed certified mail return
receipt requested. The letter should be signed by hb. Elenberg, as Administrator of the That.
IV. Further Proceedings
32. Depending on the nature of the petition filed by Mr. Odio, the Board may be
required to refer the petition for the hearing to the Division of Administrative Hearings for a
formal hearing under s. 120.S7(11 Florida Statutes, if W. Odio or his counsel allege that there
are disputed issues of material fact. If Mr. Odic or his counsel requests a hearing but does not
allege the existence of disputed issues of material fact, under s. 12037(2� Florida Statutes, the
Board can:
a) hold the hearing itself
b) appoint a hearing officer to hold the hearing; or
c) request the appointment of a hearing officer from the Division of eve
Hearings to hold the hearing.
• If a formal hearing is required or if an informal hearing is requested and either of the latter two
alternatives for conducting such a hearing applies, the hearing officer would issue a recommended
order to the Board.
33. The recommended order would be submitted to the Board and the Board would be
responsible for the entry of a final order. Exceptions to the recomnxaded order could be filed by
IVir. Odio or his counsel and by our firm, on behalf of the Trust. The Board would be required to
rule on each exception which is filed.
34. Any appal ofthe Board's decision would be to the Third District Court of
Appeal. Section 112.3173(5)(b), Florida Statutes, provides that an order of fief iture is
appealable to the district court of appeal.
Z . 4 k 7 1T
fepetv'!d dam Mi. Bladerg, through December 5, 1997
-; W ➢ 1MI gs >6emn buw&L ;Mr. Odio receiver
t+rlir l �'Ai amo cof44*047.23 Melt month ,Through February 17
6. -. ' 4 ja�n� abo bean informed that Mr. Odio contributed S209,550M to the Trust
for bit ra6raaraaot.
37. Section 112.3173(31 Florida Statutes, authorizes a public employee whose
retirement benefits are forfeited to receive the return of his or her accumulated contributions as of
the date of termination.
38. However, s. I li3173(5xd), F.S., provides:
39. Because, Mr. Odio has not yet received total payments which equal the amount he
contributed to the system, the Board does not face the immediate problem of recovering any extra
amounts paid to Odio beyond his accumulated contributions. However, if W. Odio's pension
benefits are forfeited, Mr. Odio would be entitled to receive a refund of the balance of his
contributions to the Trust (apprmetmately $130,615.58 as of February 17, 1998).
40. On January 7, 1998, our firm wrote to Mr. Cohen and extended Mr. Odio an
opportunity to provide our firm any information or legal precedents which Mr. Odio would like to
submit. Our letter adwd that any such information be supplied not later than January 28, 1998.
See Tab 16.
41. In a telephone conference on January 7, 1998, Mr. Cohen asked for a copy of all
documents in the files of Blank, Rigsby dt Meenan, P.A., regarding the potential forfeiture of Mr-
Odio's retirement benefits. We requested that Mr. Cohen send him a written request for this
material.
16
r
42. On January 23, 1998, we transmitted a copy of all materials in the files of Blank,
Rigsby 8t Meenan, P.A., relating to the potential forfeiture of Mr. Odio's pension benefits other
than those records which were exempt from inspection and copying pursuant to s. 119.07(3)(1),
Florida Statutes. See Tab 17..
43. On January 25, 1999, we received a letter from Mr. Cohen requesting a copy of
"all documents or other material that are public records which you have reviewed in connection
with the factual investigation that you are undertaking." Mr. Cohen indicated in his letter that
after reviewing the requested material he would be able to determine whether there is any legal
precedent or information that he would submit. See Tab 13.
44. On January 30, 1998, we wrote Mr. Cohen confirming a telephone conference of
same date. During this convasatioq Mr. Cohen requested additional time to review of the
materials he requested and to decide whether to submit any legal precedents or information to
Blank, Rigsby & Meenan, P.A. prior to the preparation of our report to the Board. See Tab 19.
' 45. On February 3, 1998, Mr. Cohen wrote to our offices and asked for additional
time to submit information prior to the preparation of our report to the Board. Mr. Cohen asked
that the deadline for u miWon be extended to February 16, 1998. See Tab 20.
46. On February 5, 1998, we confirmed that the deadline for submission ofany
material Mr. Odio wanted considered before the preparation of our report was extended to
r February 16,1998. See Tab 21. '
' 47. On February 16, 1998, Mr. Cohen wrote and raised three issues. See, Tab 22.
48. The first issue raised by Mr. Cohen was that "[s]inc a the Trust is apparently
' proceeding in a matter that may affect Mr. Odio's substantial interests and will involve a multitude
of disputed issues of material fact," the Trust must "adopt rules before the process begins." Mr.
Cohen's letter cites several sections of the Miami City Code for the proposition that the Trust has
authority to adopt rules governing the decision concerning Mr. Odio's pension. This issue should
-be referred to the Board's General Counsd for review and recommendation to the Board as it is
beyond the scope of the duties assigned to our firm -
49. The second issue raised by Mr. Cohen was that a copy of the plea agreement
entered by Mr. Odio was referenced in an e-mail contained in the documents set to W. Cohen as
a part of his public records request but the eery of the plea agreement was not included in the
documents sent to him. On February 17, 1998, we sent Mr. Cohen a copy of the plea agreement
which was referenced in the W. Cohen's letter.
50. The third issue raised Mr. Cohen is that s. 112.3I 2 by �( xe)6, FlorW& statrroa, is
unconstitutionally vague 11Mr. Cohen contends that the vapeoess of the statute is wed by
the Trust's bflure to adopt rules. Mr. Cohen adds that General Caumd Mar has opined to the
17
r
Boar# that the "dW.0 /41O #Pr.Mr. Odio'spea�ion is s. 112.3173(2xe)i.,
1��pri OM.,. OI ��yk. Coh. S tint W. Odio'Atly denies that he committed any
,tea 11t s.112.3473(2)e� FlorWIR StatJtea, is
000areittrtionalb► vaStris lire' 'roMoi:a�ln ie s� s proo�edni� conducted pursuant to
Ch owl2k P4orida,twAtes. rut iron easybe 96alaed beft the Third District Court of
1p is q&. otan orderatfadWom rendered by file Board
Woo
350 So. 2d $29 (3rd D.CA ,19771 oect. denied. 358 So. Zd 129,
386 So.2d $44 (1st D.C.A., 1980).
Vb ROMMENAdAtin
51. The Board should autborize Ms. Elenbbag to send a letter to Mr. Odio and his
attorney, Mr. Cohen, k&cmigg Mr. Odio that his benefits under the City of Miami General
Employee': and Sanitation Employees' Retirement Trust have been forfeit because of Mr. Olio's
conviction for violating TWe 18, United States Code, section 1512(b)(3) and providing Mr. Odio
the notice required so that he may request a hearing regarding the forfdbu+e of his pension
bee6ts from the Trust.
52. Ma hearing is requested by Mr. Odic or by Mr. Cohen, on Mr. Odio's behaK the
Board's General Counsd should review the request for bearing and determine whether the
hearing request sped ically sets forth disprted issues of material fact. Mthene we disputed issues
of material fact, the Board should rat% Mr. Olio's request for hearing to the Division of
A' * lei trstive Hearings.. ffno disputed issues of material fact are alleged, the Genaal Counsel
should recommend to the Board whether a) the Board should appoint shearing officer to conduct
the bearing; b) the Board should act as hearing officer and conduct the hearing; or c) the Board
should rtFer the matter to the Division of Admirtis- dve Hearing to conduct the hearing. 15
is
sr-'o�l�-
L - •
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA-
UNITED STATES OF AMERICA
CESAR ODIO,
Defendant.
CASE NO. 96-0872-CR-MOORE
18 U.S.C. J1512(b)(3)
The United States Attorney charges that:
On or about August 27, 1996, at Dade County, in the Southern
District of Florida, and elsewhere, the defendant,
CESAR ODIO,
did knowingly and willfully corruptly persuade Manohar Surana, and
attempt to do so, with the intent to hinder, delay and prevent the
communication to a law enforcement officer of information relating
to the commission and possible commission of Federal offenses.
violation of Title 18, United States Code, Section
1512(b)(3) and Title 18, United States Code, Section 2.
WILLIAM KEEFER
UNITED qrATES ATTORNEY
STATES ATTORNEY
SISTANT UNITED STATES ATTORNEY
Certified to be a true and
correct copy of the original.
Carlos Juenke, Clerk
U. S. District Court
Dktft of
cw.
c.�._C —"
UNITED STATES DISTRICT
SOUTJ E DISTRICT of FLos2n�► `:
UNITED STATES of AJG1RZC1L )
No. 96-872-CR-M OM
V.
CZSAR oDlo,
D.tndant. �
PLti► T
The United States of America and Cesar Odio
(hereinafter referred to as the "defendant") enter into the
following agreement:
1. The defendant agrees to. plead guilty to a superseding
Information which charges the defendant with obstruction of justice
in violation of Title 18, United States Code, Section IS12(b)(3).
2.. The United States agrees that it will seek to dismiss, with
prejudice, the Indictment in this case as it relates to the
defendant after sentencing in this case. The United States also
agrees that the disposition prescribed in this agreement' will
conclude the defendant's exposure to federal criminal charges, if
any, which the United States Attorney for Southern District of
Florida has total and undivided authority to seek- and prosecute,
and which arise from arquably criminal acts presently known to the
United States attorneys office for the Southern District of
Florida.
3. The defendant is aware that the sentence will be imposed in
conformity with the Federal Sente_rcina Guidelines and Policy
Statements. The defendant ii also aware -that'* sentence, imposed
I
under the guidelines does not provide for parole. ]mowing these
facts,, 'the defendant agrees that this Court has jurisdiction and
authority to iwSese MW sentence vLthin the statutory maximum set
for his offense.
4. The parties stipulate and agree that the applicable
Guideline range under the Sentencing Guidelines is level 12 for
this offense. However, the parties specifically agree and
understand that this recommendation is not binding on the court.
The parties have reached this calculation based on Section 2J1.2 (a)
of the Sentencing Guidelines which provides for a base offense
level of 12, a two level enhancement under Section 381.3 for abuse
of public trust or position and a two level reduction under Section
3E1.1 based upon the defendant's recognition and affirmative
acceptance of personal responsibility. This agreement by the
United States is conditioned upon the defendant making a full,
accurate and complete disclosure to the United States Probation
Office of the circumstances surrounding the defendant's relevant
conduct as set forth in the attached agreed statement of facts.
The parties further agree that neither will seek or advocate a
departure upward or downward from the Sentencing Guidelines range
ultimately determined by the Court.
s. The defendant understands and agrees that the Court may
impose any sentence authorized by law and that the defendant may
not withdraw his plea solely as a result of the sentence imposed.
The defendant also understands and agrees that the Court may impose
a statutory maximum term of imprisonment of up to to years,
2
Sc�c
followed by a term of up to three years' supervised release. In
addition, the Court may impose a fine of up to $250,000 per count
and may order restitution.
6. The defendant understands and agrees that, in addition to
any sentence imposed under paragraph S of this agreement, a special
assessment in the amount of $100.00 will be imposed.
9. The defendant is aware that the sentence has not yet been
determined by the court. The defendant is also aware that any
estimate of the probable sentencing range that he may receive from
his counsel, the government or the probation office, is a
prediction, not a promise, and is not binding on the government,
the probation office or the court.
S. This is the entire agreement and understanding between the
United States and the defendant. There are no other agreements or
3