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HomeMy WebLinkAboutR-93-0795J-94-60 1/13/94 RESOLUTION NO. 93- 795 A RESOLUTION AUTHORIZING THE DIRECTOR OF THE FINANCE DEPARTMENT TO ISSUE A CHECK PAYABLE TO THE TRUST ACCOUNT OF THE LAW FIRM OF KLAUSNER AND COHEN, P.A. IN THE AMOUNT OF $30,965.82 FOR ATTORNEYS' FEES AND COSTS INCURRED BY THE FRATERNAL ORDER OF POLICE, MIAMI LODGE 20, AS FOLLOWS: $20,000.00 FOR THE REPRESENTATION OF DANIEL RICHARDS, POLICE OFFICER, IN THE CASE OF STATE OF FLORIDA VS. DANIEL RICHARDS, DADE COUNTY CIRCUIT COURT CASE NO.: 91-11895 (B-KAHN); $4,465.82 FOR THE REPRESENTATION OF JAMES FITZGERALD, POLICE OFFICER, IN THE CASE OF FEWQUAY VS. FITZGBRALD, DADE COUNTY CIRCUIT COURT CASE NO.: 91-45864; $1,500.00 FOR THE REPRESEN- TATION OF J. E. MENDEZ, POLICE OFFICER, IN THE CASE OF RASMUSSEN' VS. CITY OF MIAMI AND J. E. MENDEZ, UNITED STATES DISTRICT COURT CASE NO.: 92-1986-CIV-NESBITT; AND $5,000.00 FOR THE REPRESENTATION OF J. E. MENDEZ, POLICE OFFICER, IN THE CASE OF PEREZ VS. CITY OF MIAMI AND J. E. MENDEZ,UNITED STATES DISTRICT COURT CASE NO.: 91-2083-CIV-MOORE, AND ALLOCATING FUNDS THEREFOR, IN THE AMOUNT OF $30,965.82 FROM THE CITY OF MIAMI'S SELF- INSURANCE AND INSURANCE TRUST FUND. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The director of the Finance Department of the City of Miami is hereby authorized to issue a check payable to the trust account of the law firm of Klausner and Cohen, P.A. in the amount of $30,965.82 for attorneys' fees and costs incurred by the Fraternal Order of Police, Miami Lodge 20, as follows: CITY C41vMSSION MEETING OF DEC 1 6 1993 Resolution No. 93- 795 $20,000.00 for the representation of Daniel Richards, police officer, in the case of State of Florida vs. Daniel Richards, Dade County Circuit Court Case No.: 91-11895 (B-KAHN); $4,465.82 for the representation of James Fitzgerald, police officer, in the case of Fewquay vs. Fitzgerald, Dade County,Circuit Court Case No.: 91-45864; $1,500.00 for the representation of J. E. Mendez, police officer, in the case of Rasmussen vs. City of Miami and J. E. Mendez, United States District Court Case No.: 92-1986-CIV-NESBITT; and $5,000.00 for the representation of J. E. Mendez, police officer, in the case of Perez vs. City of Miami and J. E. Mendez, United States District Court Case No.: 91-2083- CIV-MOORE, with funds therefor being hereby allocated from the City of Miami's Self -Insurance and Insurance Trust Fund. Section 2. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this MATTY HIRAI CITY CLERK PREPARED AND APPROVED BY: 66��L) ALBERTINE B. SMITH CHIEF ASSISTANT CITY ATTORNEY AQJ/ABS/sls/M4095 16th day of December, 1993. STE HEN P. CLAPJK, MAYOR -2- APPROVED AS TO FORM AND CORRECTNESS: 93- 795 49 KLAUSNER & COHEN, P.A. ATTORNEYS AT LAW Aurelio Perez-Lugones Legislative Administrator 3500 Pan American Drive Miami City Hall Miami, FL 33133 :w11" � rli-li''ili i�`.tJl�7 H 1f TAFT STREET 93 HOLE I3LOR DA 33024 November 8, 1993 BROWARD: (305) 9BI.1222 DADE: (305) 620.6565 FAX: (305) 981.0088 Re: Reimbursement of Attorneys' Fees for Miami Police Officers Our File No. 19-0227-90 Dear Aurelio: This is in follow-up to your conversation with my secretary last week, wherein you requested that I copy you with the letters requesting reimbursement of attorneys' fees for several Miami police officers. Enclosed are those letters. It would be greatly appreciated if you could place these matters on the City's next agenda. Please contact my office to advise when they will be placed on the agenda. Thank you for your cooperation. Very Iruly yours, /I X � (�. Ronald J. Cohen RJC/jm Enclosures cc: Al Cotera, President FOP Lodge 20 93- 795 r ^- KLAUSNER & COIILN, P.A. ATTORNEYS AT LAW CITY 1 " elk) a'irriC� i, 93 NON _9 P1`1 yi! 4 SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 BROWARD: (305) 981.1222 DADE: (305) 620.6565 FAX: (305) 981.0088 November 8, 1993 The Honorable Xavier Suarez, Mayor City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Officer Dawn Campbell Our File No. 19-0814-91 Dear Mayor Suarez: This a request for reimbursement for attorney's fees for Officer Dawn Campbell. As you are undoubtedly aware, on January 15, 1989, Officer Dawn Campbell was partners with William Lozano in the overtown area. Officer Campbell was a witness to the events which led to Officer Lozano being charged with two counts of manslaughter and eventually being acquitted. Officer Campbell cooperated fully with the police investigators and representatives of the State Attorneys office in.giving statements about what she had seen. Officer Campbell was charged with three counts of perjury, alleging that she perjured herself during her pretrial depositions and during the first Lozano trial. Officer Campbell was tried before a jury in Orange County, Florida. The case was transferred to Orange County with the approval of both Officer Campbell and the State of Florida, due to extensive pretrial publicity. At the close of the State's case, the trial judge granted a dismissal of one of the charges of perjury. Officer Campbell was acquitted on the remaining charges. Dawn Campbell is presently working as a City of Miami police officer. We believe that Florida law provides that an officer who must defend himself in a criminal action arising out of the performance of his official duties is.entitled to a defense at the City's expense. Moreover, the City should pay for Officer Campbell's 93- 795 The Honorable Xavier Suarez, Mayor November 8, 1993 Page 2 defense because she was working in the course and scope of her employment at the time of the incident. Officer Campbell was represented by Joel Kaplan, whose reasonable fee for his services is $50,000.00. Please place this matter on the City Commission agenda at the earliest possible time. Vlald ul yo , RJ. Cohen RJC/jm cc: Cesar Odio, City Manager A. Quinn Jones, III, City Attorney Joel Kaplan, Esquire i E 93- 795 KLAUSNLIt & COVEN. P.A. ATTORNEYS AT LAW SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 HROWARD: (305) 98IA222 DADE: (305) 620.6565 FAX: (305) 981-OOBB December 29, 1992 The Honorable Xavier Suarez Mayor - City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Fraternal Order of Police,,Miami Lodge 20 Officers Richards, Kowalski and Lara Dear Mayor Suarez: The undersigned represents Fraternal Order of Police, Miami Lodge 20, and Officer Dan Richards. While in the course of working a regular off -duty detail at the Loggerhead Bar, Officer Richards was called upon to make an arrest. He was assisted in that arrest by Officers Kowalski and Lara. It was alleged that in the course of that arrest that Officer Richards committed the offense of battery. Charges were brought by the State Attorneys' office against Officers Lara, Kowalski and Richards. Charges were eventually dropped against Officer Lara. Officers Richards and Kowalski stood trial on the offense of official misconduct. Following a trial, they were acquitted by a Dade County jury. In the course of that activity, Officer Richards and the FOP incurred $20,000.00 in legal costs. Request is hereby made pursuant to the Common Law Doctrine established in Thornber v. City of Fort Walton Beach, Lomello v. City of Sunrise, and Branca v. City of Miramar for reimbursement for those attorneys' fees and costs. j") If you require any further informat si Very jj RDK:jm detail, phase advise. S 93- 795 KI,AUSNF,R & COFIEN, P.A. ATTORNEYS AT LAW SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 BROWARD: (305) 9B1.1222 DADE: (305) 620.6565 FAX: (305) 981.0088 November 1, 1993 The Honorable Xavier Suarez, Mayor City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Juan A. Perez v. City of Miami and Officer Juan E. Mendez United States District Court, Southern District of Florida Case No. 91-2083-Civ-Moore Our'File No. 19-0752-91 Dear Mayor Suarez: Officer Juan E. Mendez, a veteran Miami police officer, is a named Defendant in the case of Juan A. Perez v. The City of Miami and Juan E. Mendez, United States District Court, Southern District of Florida, Case No. 91-2083-Civ-Moore. The lawsuit arose out of events that occurred on or about October 21, 1990. On that day, Officer Mendez, along with his partner, Officer Ramos, were involved in a chase of a stolen car. They proceeded to the Rio Grande Bar in the vicinity of N.W. 2nd Avenue and 38th Street. At that time, a person who later became known to them as Ronald Baker saw the police and began fleeing. Officer Ramos ran after Baker and apprehended him. Baker was then placed into the police vehicle. In the area was Juan Perez, who was drinking a beer and eating a sandwich. He was yelling obscenities at the police. Officer Mendez told him to leave the area. Perez did not follow Officer Mendez' instructions and Perez was arrested for drinking in public, disorderly conduct, and other charges. A struggle ensued, which involved Perez kicking Officer Mendez in the groin area. Eventually, Perez was subdued. Perez filed a complaint of abusive treatment against Officer Mendez. Initially, Officer Mendez was charged with several crimes arising out of the arrest of Baker and Perez. Upon further investigation, it was discovered that some of the alleged "witnesses" against Officer Mendez were members of a gang known as � - 795 The Honorable Xavier Suarez, Mayor November 1, 1993. Page 2 the 1134th Street Players" and trafficking in narcotics, sale narcotics. Additionally, Mr. narcotic violations. All charges prossed. were charged with racketeering, of narcotics and possession of Perez was charged with serious against Officer Mendez were nolle This matter has been thoroughly investigated by the City of Miami Internal Affairs Department and no discipline has been leveled against Officer Mendez at all. Initially, the City Attorney refused a defense to Officer Mendez. I recently spoke with Warren Bittner, Assistant City Attorney, who informed me that it is now the position of the City Attorney that Officer Mendez should be afforded a defense at the City's expense. The City does not believe that at the present time it has a conflict, but believes that it is possible that a conflict may arise in the future and, therefore, believes it is best for both Officer Mendez and for the City for this office to continue to provide Officer Mendez with a defense. This defense should be, however, at the,City's expense. The case is now set for trial on January 24, 1994. I am enclosing a copy of our bills to date. Request is made that the City Commission approve our representation of Officer Mendez, pay for his fees and costs to date and continue to pay us the reasonable fees and costs of his defense. Please place this on the City Commission Agenda at the earliest possible time. Ver/,y Vruly/yoArs, ld J. Cohen RJC/jm Enclosure cc: Ornel "A1" Cotera, President FOP Lodge 20 Officer J.E. Mendez Warren Bittner, Esquire Cesar Odio, City Manager 93- 795 klausner & Cohen, P.A. Bill History Report From 03/01/92 Page: 1 Run : 11/02/93 DATE MATTER CODE AND DESCRIPTION NUMBER EXPENSES FEES TOTAL DESCRIPTION '=eaeetoaaasaeaaaaantsaacaaeaea=acaoeeeseee=eenev�ov_eeeeeaa�exee�=eeeeeo=eae=eae�eec�ecoaseeeeee=eee-tm=aoemsees=aent=_=:etcoaaoaasea 07/14/92 91-0752 F.O.P. 20 - J. E. MENDEZ 1 RJC Ronald J. Cohen 30.00 TOTAL 0.00 30.00 30.00 08/14/92 91-0752 F.O.P. 20 - J. E. MENDEZ 1 RJC Ronald J. Cohen 10.00 TOTAL 0.00 10.00 10.00 09/15/92 91-0752 F.O.P. 20 - J. E. MENDEZ 1 TOTAL 0.00 0.00 0.00 01/19/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 RJC Ronald J. Cohen 10.00 TOTAL 0.00 10.00 10.00 i 02/16/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 I 02• PHOTOCOPIES 10.25 RJC Ronald J. Cohen 10.00 TOTAL 10.25 10.00 20.25 i 03/16/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 TOTAL 0.00 0.00 0.00 04/20/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 j11 i TOTAL 0.00 0.00 0.00 05/18/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 TOTAL 0.00 0.00 0.00 I 06/15/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 ' RJC Ronald J. Cohen 10.00 TOTAL 0.00 10.00 10.00 i 07/20/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 i RJC Ronald J. Cohen 110.00 TOTAL 0.00 110.00 110.00 08/17/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 RJC Ronald J. Cohen 10.00 TOTAL 0.00 10.00 10.00 09/14/93 91-0752 F.O.P. 20 - J. E. MENDEZ 1 CASH 24.75 RJC Ronald J. Cohen 20.00 TOTAL 24.75 20.00 44.75 REPORT TOTALS 35.00 210.00 245.00 93- 7Q5 TM'1 KLAUSNEF, & COHEN. P.A. ATTORNEYS AT LAW SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 BROWARD: (305) 9B1-1222 DADE: (305) 620.6565 FAX: (305) 9B1.0086 August 31, 1993 Via Telefax Matty Rodriguez, Secretary to Cesar Odio, City Manager City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Noel Bailey v. Juan E. Mendez, Victor Ramos and City of Miami Our File No, 19-0027-93 Douglas Rasmussen v. City of Miami, Officer J.E. Mendez, et. al. Our File No. 19-0072-93 Dear Matty: i Pursuant to our phone conversation today, attached please find copies of the letters to Mayor Suarez dated June 3, 1993 and June 8, 1993, requesting that reimbursement of attorneys' fees in the above -referenced matters be placed on the City's agenda. Thank you for following up on these requests. I look forward to hearing from you soon. Very truly yours, 11a itt, ecr ')jbrnald' i-ue Moffetary to J. Cohen /1 93- 795 IKLAUSNER. & CG__hN, P.A. ATTORNEYS AT LAW SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 BROWARD: (305) 981.1222 DADE: (305) 620.6565 FAX: (305) 961.0066 June 3, 1993 The Honorable Xavier Suarez, Mayor City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Douglas Rasmussen v. City of Miami, Officer J.E. Mendez, et. al. Our File No. 19-0072-93 Dear Mayor Suarez: Along with the City of Miami, City of Miami Police Department, Dade County, Dade County Court Clerk, the State of Florida, and the State of Florida Department of Motor Vehicles, Officer J.E. Mendez is a defendant in a civil suit now pending in the United States District Court, Southern District of Florida, brought by Douglas D. Rasmussen, Case No. 92"1986-Civ-Nesbitt. The case has been brought by Mr. Ri the allegations of the Complaint Mr. Rasmussen is complaining that r on or about September 51 1988, license. The Complaint appears Department of Motor Vehicles was suspended, in reality it was not. Lsmussen without an attorney and ire somewhat hazy. Apparently, Is was arrested by Officer Mendez for driving with a suspended to be that even though the reporting that the license was At the time of the arrest, Mr. Rasmussen told Officer Mendez that he was going to get him. Mr. Rasmussen's complaint was investigated by Internal Security and Internal Security found the complaint against Officer Mendez to be inconclusive. Officer Mendez did not receive any discipline as a result of the incident. Officer Mendez requested that the City provide him with a defense. The City Attorney responded (copy attached) stating that he could not represent Officer Mendez due to a conflict of interest as a 13 '; 93- 795 The Honorable Xavier Suarez, Mayor June 3, 1993 Page 2 result of another ease. The City Attorney stated, however, that it would not be proper for the City to decline an attorney to a police officer to defend a civil action arising from a complaint for damages or injury as a result of an act or omission arising out of and in the scope of his employment and, therefore, he would recommend to the City Commission that the City provide Officer Mendez with a defense with a reservation of rights. Officer Mendez has requested that this office provide him with a defense and we are presently proceeding to-do so. Florida law clearly provides that an officer who is sued in a civil lawsuit arising out of the performance of his official duties is entitled to reimbursement for legal expenses incurred in the defense of that matter. Since the City of Miami Law Department cannot provide Officer Mendez with a defense due to a conflict, Officer Mendez was required to seek outside counsel. Accordingly, Officer Mendez requests the City of Miami to provide him with a defense in this matter. An itemization of the hours spent and the*fees and costs incurred to date is attached to this letter. Please place this matter on the agenda of the City Commission for consideration. Very truly yours, 1 j % Ronald J. Cohen RJC/jm Attachments cc: Cesar Odio, City Manager A. Quinn Jones, III, City Attorney Ornel "A1" Cotera, President FOP Lodge 20 Officer J.E. Mendez /y 93- 795 A. QUINN )ONES, III City Attorney April 23, 1993 Robert D. Klausner, Esquire Klausner & Cohen, P.A. 6565 Taft Street Hollywood, Florida 33024 Re: Douglas Rasmussen v. City of Miami, et al Case No. 92-1986-Civ-NESBITT Your File No. 19-0072-93 Inquiry regarding J.E. Mendez Dear Robert: (305): 579-6700 Telecopier: (305) 579-3399 This is in response to your letter to A. Quinn Jones, City Attorney, dated April 16, 1993, relative to the City's providing Mr. Mendez with a defense in the above -referenced case. As per our discussion earlier today, the City's Law Department takes the position -that it cannot represent Mr. Mendez due to a conflict of interest in that we have previously declined! to represent him in another case where he is a co-defendant with the City. With regard to your telephonic request that Mr. Mendez's attorney's fees be paid as the case proceeds, I enclose herewith a copy of Resolution No. 93-30, as well as that portion of the -transcript of the Commission Meeting of January 14, "1993, applicable to the requirement that an employee seek Commission approval prior to engaging outside counsel (see pages 11/and 12 of the transcript). Moreover, although we dispute your conclusion that Internal Affairs "cleared him of any wrongdoing", we do agree that Internal Affairs found the allegations against Officer Mendez to be "inconclusive". In addition, it is our opinion that the City of Miami has no direct legal obligation under state law to provide an attorney to defend a civil action brought against a law enforcement officer. Nevertheless, we feel it would be ill-advised for the City 'to decline an attorney to a police officer to defend a civil action arising from a complaint for damages or injury as a result of an act or omission arising out of and in the scope of his employment, in the absence of }.gad faith, malicious purpose, or wanton and willful disregard of human rights, safety, or property. RECEIVED APR 2 6 1993 5 OFFICE OF THE CITY ATTORNEY/Dupont Plaza Center, Suite 300/300 Biscayne Boulevard Way/Miami, Florida 33131 93- 795 Page 2 April 23, 1993 Re: Rasmussen Robert Klausner, Esq. .Consequently, upon Officer Mendez'' petition to the City Commission for representation, it will be our recommendation that a defense be provided at the initial expense of the City of Miami, WITH THE RESERVATION THAT, if Officer Mendez is found to be personally liable by virtue of.- 1) acting outside the scope of his employment; or 2) acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, the City of Miami will seek to recover all attorney's fees paid on behalf of Officer Mendez, in a civil action against him. In light of the time factor regarding Mendez having been served on April 7, 1993 as stated in your letter to the City Attorney, my understanding is that you will be filing either an Answer or a Motion to Dismiss on behalf of Mendez and thereafter seek to comply with the City CommissiorL,'s Resolution. LMF / ci11 /M2 6 2 Enc. cc: A. Quinn Jones, City Attorney /6 truly yours, ,AEON M. FIRTEL ASSISTANT CITY ATTORNEY 93- 795 Klausner & Cohen, P.A. Page: 1 Run : 06/03/93 Billed Time Report for BOB From 01/01/93 thru 06/01/93 Matter Event Attorney Date Hours $ Value Billable Description 93.0072 FOP 20 - J. E. MENDEZ V. DOUGLAS RASMUSSEN 8889 RDK 04/23/93 0.40 40.00 B PHONE CONFERENCE WITH FIRTEL 8918 RJC 04/26/93 3.00 300.00 B RESEARCH RE POSSIBLE MOTION TO DISMISS; RECEIPT AND REVIEW OF LETTER FROM FIRTEL 8892 SBM 04/27/93 0.50 50.00 8 PREPARATION OF MEMO TO RON COHEN RE SUFFICIENCY OF SECTION 1983 COMPLAINT 8905 SBM 04/27/93 2.80 280.00 B RESEARCH RE SUFFICIENCY OF PRO SE SECTION 1983 COMPLAINT 8922 RJC 04/27/93 3.20 320.00 B RESEARCH RE POSSIBLE MOTION TO DISMISS; REVIEW OF FILE AT COURTHOUSE; PREPARATION OF ANSWER 9205 RJC 04/28/93 0.20 20.00 B REVISIONS TO ANSWER AND DEFENSES 9220 RJC 04/30/93 0.20 20.00 B PREPARATION OF LETTER TO JONES; PREPARE REQUEST FOR TRIAL BY JURY Matter Total 10.30 1,030.00 Total this report 10.30 1,030.00 �7 93- 795 i KLAUSNE11 & C011EN, P.A. ATTORNEYS AT LAW SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 BROWARD: (305) 981.1222 DADE,, (305) G20•G5G5 FAX: (30S) 981.00&8 June 8, 1993 The Honorable Xavier Suarez, Mayor City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Officer Juan E. Mendez Our File No. 19-0027-93 Dear Mayor Suarez: i On January 5, 1992, Officer Juan E. Mendez, a veteran Miami Police IJ Officer, was named as a Defendant in the case of Noel Bailey-, Plaintiff, vs. Juan E. Mendez, Victor Ramos, the City of Miami, and Miguel Exposito, Defendants, United States District Court, Southern District of Florida, Case No. 92-2831-Civ-Highsmith. i The lawsuit arose out of events that occurred on or about May 16, 1990, in an area near the Miami Arena. On that day, Officer Mendez was riding -with Officer Victor Ramos. They were flagged down by a citizen who asked them if it was lawful for her to park in a certain parking lot without paying a fee, because there was somebody there that was charging them a fee. Officer Mendez and Officer Ramos proceeded to the parking lot. Officer Mendez and Officer Ramos .asked a person, who later became known to them as Noel Bailey, who was with an unnamed juvenile, what they were doing in the parking lot. Mr. Bailey and the juvenile began to walk away. Officers Mendez and Ramos stopped Mr. Bailey and the juvenile. There were approximately 20 people in the parking lot that Mr. Bailey and the juvenile had taken money from to park there. Neither Mr. Bailey nor the juvenile owned the parking lot. There was a sign on the parking lot that said "Tow Away Zone." Officer Mendez told Mr. Bailey to give the people their money back and then had the people move their cars out of the parking lot. j q 1 f. 93- 795 The Honorable Xavier Suarez, Mayor June 8, 1993 Page 2 Mr. Bailey and the juvenile were arrested. Mr. Bailey was placed in the back of the police car. Because of Mr. Bailey's size, he was not handcuffed. On the way to the police station, Mr. Bailey became quite rowdy and started banging on the window. Officer Mendez exited his vehicle and went to handcuff Mr. Bailey. Mr. Bailey then attacked Officer Mendez. Acting in self-defense, Officer Mendez used that amount of force which was reasonably necessary to defend himself and to restrain Mr. Bailey. The matter was fully investigated by the Internal Affairs Unit of the Miami Police Department and it was found that the allegations against Officer Mendez were inconclusive, and Officer Mendez did not receive any discipline at all for this incident. After Officer Mendez was sued, he received a letter from the City Attorney informing him that the City could not represent him in the matter. We wrote to the City Attorney on March 26, 1993, in an attempt to determine why the City was not providing Officer Mendez with a defense. In response, Quinn Jones' letter of April 23, 1993, states that the City Attorney was not representing Officer Mendez because of a conflict of interest in another case and that the City Attorney would recommend that a defense be provided at the initial expense of the City of Miami, with a reservation of rights. You should be aware that the City provided Officer Ramos with a defense. We represented Officer Mendez. The Plaintiff, apparently recognizing the futility of his case, voluntarily dismissed the case against Officer Mendez (as well as the other Defendants). In order to defend himself, there was incurred on Officer Mendez' behalf legal fees in the amount of $3,530.00 and costs in the amount of $218.65. Florida law clearly provides that an officer who must defend himself in a civil action arising out of the performance of his official duties is entitled to a defense at the City's expense. The City's.Law Department did not provide Officer Mendez with a defense because of a conflict of interest and Officer Mendez was required to seek outside assistance. Accordingly, Officer Mendez requests the City of Miami to reimburse him in the amount of $3,748.65 for attorneys' fees and costs. An 93- 795 The Honorable Xavier Suarez, Mayor June 8, 1993 Page 3 itemization of the hours spent and the fees'and costs incurred is attached to this letter. Please place this matter on the agenda of the City Commission for consideration. Ver ruly yours, R na d J. Cohen RJC/jm Attachment cc: Cesar Odio, City Manager A. Quinn Jones, 111, City Attorney Ornel "AI" Cotera, President FOP Lodge 20 Officer J.E. Mendez a / 93- 795 Klausner $ Cohen, P.A. Billed Time Report for BOB From 01/01/93 thru 06/01/93 Page: 1 Run : 06/03/93 Matter Event Attorney Date Hours $ Value Billable Description acmaaazaaacazzaaeazzaazaaaaazzaaaczaczzzzaaaazoaacaazaaezaazcaeczzcaaccoaaaazzaczzaazaeazzcceaczazaazczzzzaaaaazczcaczczcczaaczacz 93-0027 FOP #20 - NOEL BAILEY V. JUAN E. MENbEZ 7086 RJC 02/03/93 1.00 100.00 8 CONFERENCE WITH BITTNER; WISOTSKY; RECEIVE AND REVIEW FAX FROM BITTNER; REVIEW COMPLAINT; PREPARE MOTION AND ORDER 7070 RJC 02/05/93 0.20 20.00 B CONFERENCE WITH COLLINS 7056 RJC 02/08/93 0.10 10.00 B RECEIPT AND REVIEW OF ORDER EXTENDING TIME 7449 RJC 02/17/93 1.50 150.00 B CONFERENCE WITH MENDEZ; RECEIPT AND REVIEW DOCUMENTS FROM CITY 7467 RJC 02/18/93 4.00 400.00 B DRAFT STATUS REPORT AND REVISIONS TO SAME: PREPARE ANSWER 7469 RJC 02/19/93 2.50 250.00 B 7475 RJC 02/22/93 2.00 200.00 8 7792 RJC 02/27/93 0.10 10.00 B 8059 RJC 03/05/93 0.10 10.00 B 7806 RJC 03/10/93 0.10 10.00 8 7812 RJC 03/11/93 0.30 30.00 8 8074 RJC 03/16/93 0.50 50.00 B 8110 RJC 03/25/93 0.20 20.00 B 8115 RJC 03/26/93 0.30 30.00 B 8539 RJC 03/31/93 4.00 400.00 B I 8592 SBM 03/31/93 0.70 70.00 8 8531 RJC 04/01/93 3.00 300.00 B i8540 RJC 04/02/93 2.00 200.00 B 8547 RJC 04/05/93 0.50 50.00 B 8569 RJC 04/09/93 0.30 30.00 8 I 8579 RJC 04/12/93 1.00 100.00 B 8585 RJC 04/14/93 0.30 30.00 8 8750 RJC 04/16/93 2.30 230.00 8 8614 RDK 04/19/93 2.00 200.00 8 8842 RDK 04/19/93 3.00 300.00 B 8843 RDK 04/19/93 2.00 200.00 B 8774 RJC 04/21/93 0.20 20.00 8 8915 RJC 04/26/93 0.30 30.00 8 9197 RJC 04/28/93 0.50 50.00 8 9209 RJC 04/29/93 0.20 20.00 B 9405 RJC 05/07/93 0.10 10.00 8 Matter Total 35.30 3,530.00 Total this report 35.30 3,530.00 i DEFENSES, MOTION TO STRIKE AND RESEARCH; CONFERENCES WITHI WISOTSKY AND PREPARE ANSWER AND DEFENSES CONFERENCES WITH WISOTSKY AND BITTNER; REVISIONS TO STATUS REPORT AND REVISIONS TO ANSWER PREPARATION FOR AND ATTENDANCE AT STATUS CONFERENCE RECEIPT AND REVIEW OF PRETRIAL ORDER REVIEW OF MEDIATION ORDER RECEIPT AND REVIEW OF DISCOVERY RESPONSE CONFERENCE WITH KELLIN RE INTERROGATORIES AND CLAIM AGAINST MENDEZ RECEIPT AND REVIEW OF AMENDED COMPLAINT AND VARIOUS DISCOVERY ORDERS PREPARATION OF LETTER TO BITTNER REVISIONS TO BITTNER LETTER; CONFERENCE WITH BITTNER RESEARCH RE POSSIBLE MOTION TO DISMISS; PREPARE OBJECTIONS TO INTERROGATORIES; RESEARCH RE QUALIFIED IMMUNITY; REVIEW BITTNER'S DRAFT OBJECTIONS RESEARCH RE CIVIL RIGHTS PREPARATION OF ANSWER AND DEFENSES; RESEARCH RE POSSIBLE MOTION TO STRIKE; PREPARE MOTION TO DISMISS REVISIONS TO ANSWER AND MOTION TO DISMISS; CONFERENCE WITH BITTNER RECEIPT AND REVIEW OF MEMOS OF LAW FROM RAMOS AND CITY RECEIPT AND REVIEW OF RESPONSIVE MEMORANDUM AND VARIOUS MOTIONS AND ORDER REVIEW OF DISCOVERY REQUESTS AND DEVELOP DRAFT RESPONSES CONFERENCE WITH MENDEZ RE DISCOVERY PREPARATION OF RESPONSES TO INTERROGATORIES; RESEARCH RE SAME; PREPARE INTERROGATORIES CONFERENCE WITH MENDEZ; COMPLETE INTERROGATORIES RESEARCH ON QUALIFIED IMMUNITY PREPARATION OF AND COMPLETE INTERROGATORIES; CONFERENCE WITH MENDEZ REVISIONS TO DISCOVERY REQUESTS PREPARATION OF RESPONSE TO REQUEST TO PRODUCE; CONFERENCE WITH BITNER RE REPRESENTATION CONFERENCE WITH GARY KOLLIN RE DISMISSAL; CONFERENCE WITH MENDEZ AND COTERA REVIEW OF FAX FROM GARY KOLLIN AND CONFERENCES WITH KOLLIN RECEIPT AND REVIEW OF COURT ORDER 23" 93- 795 Klausner & Cohen, P.A. Page: 1 Run : 06/03/93 Billed Expense Report for 008 From 01/01/93 thru 06/01/93 Matter Event Expense Date Units $ Value Ref No. Description aanee__aeoenaceaaco__seae_one_aaaa.._eaeaan�n_eao.._aa.x___eaeaana�a�a_aaa�a�can___eae_ena_-o_ane_eao____eaaeeeee�aaaa___ 93-0027 FOP #20 - NOEL BAILEY V. JUAN E. MENDEZ 7549 06 02/03/93 24.90 TO DISTRICT COURT 7827 06 02/17/93 24.90 CITY ATTY'S OFFICE TO K&C 7826 06 02/19/93 24.90 TO U.S. DISTRICT COURT 7541 02 02/25/93 69 17.25 8603 06 03/29/93 24.90 TO DISTRICT COURT 8604 06 04/02/93 24.90 TO DISTRICT COURT 9501 06 04/12/93 24.90 TO U.S. DISTRICT COURT 9049 02 04/28/93 52.00 Metter Total 218.65 Total this report 218.65 �y 1-CLAUSN.ER & COHIMN. P.A. ATTORNEYS AT LAW SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 BROWARD: (305) 981.1222 DADE: (305) 620.6565 FAX: (305) 981.0088 June 15, 1993 The Honorable Xavier Suarez, Mayor City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Officer James Fitzgerald Our File No. 19-0764-91 Dear Mayor Suarez: On March 3, 1991, Officer James Fitzgerald, a veteran Miami police officer, was working an approved off duty job at the Greater Miami Jewish Federation ("Federation"). There was a huge tent on the premises set up for a dining area. The tent was not secured properly. One side of this huge tent became unfastened and began to blow in the wind. Numerous persons were present. Officer Fitzgerald notified his sergeant about the danger. Officer Fitzgerald and an employee of the Federation, James Fewquay, attempted to tie the tent to a concrete parking bumper. The concrete parking bumper fell on Mr. Fewquay's hands, apparently causing him damage and injury. Officer Fitzgerald was named as a Defendant in a lawsuit brought by Mr. Fewquay and his wife, Case No. 91-45864, Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida. Officer Fitzgerald requested that the City provide him with a defense (copy attached). The City attorney stated that the City would not provide Officer Fitzgerald with a defense and told him to notify his insurance carrier. Officer Fitzgerald's homeowners insurance declined to provide Officer Fitzgerald with a defense. Shortly thereafter, we wrote to Mr. Jones (copy attached) again requesting that the City defend Officer Fitzgerald. The City refused to do so. 93- 795 The Honorable Xavier Suarez, Mayor June 15, 1993 Page 2 It was necessary for Officer Fitzgerald to sue both the City of Miami and the Federation.- Officer Fitzgerald was either working for the City of Miami at the time of the incident or for the Federation. If he was working for the City of Miami, as we believe, he could not be named as a party defendant under Florida law. If he was working for the Federation, he could not be responsible for the injury because the injury was to a coworker and under Florida law, the injury by one coworker to another coworker is exclusively in the domain of workers' compensation. Once this was explained to the Plaintiff, he voluntarily dismissed his claim against Officer Fitzgerald and is now proceeding against the City of Miami and the Federation. Officer Fitzgerald's claim against the City of Miami remains pending, because he has claimed that he was entitled to be provided with a defense. For reasons which have escaped us from the very beginning, the City has denied Officer Fitzgerald a defense. This is in contravention of the law of the City of Miami, and the policy of the City Commission as set forth in Section 42-8.1(c), which provides as follows: Liability for all civil actions and judgments (excluding individual punitive damages) arising out of claims resulting from the performance of duties unrelated to law enforcement during the period of said assigned off duty police services, shall be borne by the party requesting such off duty police services. The party for or on behalf of whom such duties unrelated to law enforcement have been rendered shall hold the city, its officers, agents, and employees, harmless for any and all claims, demands, actions, causes of actions, suits, damages, loss and expenses, judgments, and attorneys' fees and costs expended in defense of same. The City should have gotten a hold harmless agreement from the Federation. A portion of the surcharge that is assessed on all off duty employers is ostensibly for the purpose of purchasing insurance for the officers. The money is collected, but the officers have no insurance. This is simply wrong. Officer Fitzgerald was taking reasonable steps to protect the health, safety and welfare of persons who were under a tent that was blowing away. He was in police uniform at the time and was working in the City of Miami. It is simply outrageous that the City would completely walk away from him in a case like this. He certainly 93- 795 The Honorable Xavier Suarez, Mayor June 15, 1993 Page 3 would have been disciplined if he failed to take reasonable steps to protect the safety of citizens. This is exacerbated by the City's failure to obtain a hold harmless agreement from the Federation. It is only reasonable for police officers who are working an off duty job and take steps to protect the safety of the citizens of the City of Miami to be supported by the City of Miami, either by providing them with a defense or by getting a hold harmless agreement from the employer. The City did neither. We successfully provided Officer Fitzgerald with a defense. The fees and costs totalled $4,465.82. Please place this matter on the City Commission Agenda for consideration. Very,. t my yours, 54 �-//��R6nald J. ohen RJC/ j m cc: Cesar Odio, City Manager A. Quinn Jones, III, City Attorney Ornel "Al" Cotera, President FOP Lodge 20 Theresa Girten, Esq. James Fitzgerald 93- 795 KLAUSNEF, & COHI+;N. P.A. ATTORNEYS AT LAW August 23, 1993 Cesar Odio, City Manager City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Roberto Baez Our File No. 19-0781-91 Dear Mr. Odio: SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 BROWARD: (305) 981.1222 DADE: (305) 620.6565 FAX: (305) 981.0088 I note with no small degree of concern the fact that our demand for attorneys' fees on Roberto Baez has gone unresolved by the Commission for nearly a year, while the Lozano case has already received substantial Commission attention. Sgt. Baez not only had the criminal charges against him voluntarily dismissed by the State, but has undergone a full Civil Service review, including a review by you of the Board decision unanimously reinstating him. Sgt. Baez' return to serve the citizens of Miami as a member of the Police Department. j What remains unresolved, however, is the substantial financial hardship brought about by his being forced to defend himself in the criminal action. In addition, Sgt. Baez remains indebted to the FOP for monies borrowed pursuant to the legal defense plan. I am aware that the Commission does not meet during the month August and, therefore, we must demand that this matter be placed on the Commission agenda in September for resolution. A failure to schedule the matter will be taken by us as a denial of Baez' claim and we will feel free to take action in the circuit court to enforce Sgt. Baez' common law right to receive a defense at the expense of the City. Si :,. 93- 795 Cesar Odio, City Manager City of Miami November 14, 1991 Page 2 We await your reply. RDK/jm cc: Al Cotera, President FOP Lodge 20 Douglas Williams, Esquire 30 /I Ve y R KLAUSNgR & C OHEN. P.A. ATTORNEYS AT LAW SUITE 200 6565 TAFT STREET HOLLYWOOD. FLORIDA 33024 6ROWARD: (305) 981.1222 DADE: (305) 620.6565 FAX: (305) 961.0088 May 7, 1993 A. Quinn Jones, III, City Attorney City of Miami 300 Biscayne Boulevard Way 300 Dupont Plaza Miami, FL 33131 Re: Roberto Baez - Attorneys' Fees File No. 19-0781-91 Dear Quinn: This will serve to advise you of the breakdown of the billable hours spent and unreimbursed costs incurred by Douglas Williams on behalf of Sgt. Baez. Doug Williams billed for his services at the hourly rate of $325.00 and received a $25,000.00 retainer. To date, he has been paid a total of $58,878.98 in attorney's fees. There remains outstanding $62,024.12 in attorney's fees. This brings the total attorney's fee to $120,903.10. The billable hours Mr. Williams spent on behalf of Sgt. Baez is as follows: $120,903.10 _ $325.00 = 372.01 hours In addition, there remains $11,209.37 in unreimbursed costs. This brings the total for fees and costs owed in this matter is $72,233.49. You may inspect the file for additional information, with the exception of confidential memoranda and notes. Please let me know if you need any other information to present this claim to the City C_nmm i --s i nn _ RDK/jm cc: Al Cotera, President FOP 20 93- 795 5 KLAUSNER & COHEN, P.A. ATTORNEYS AT LAW SUITE 200 6565 TAFT STREET HOLLYWOOD, FLORIDA 33024 BROWARD: (305) 981.1222 DADE: (305) 620.6565 FAX: (305) 981.0088 December 31, 1992 The Honorable Xavier Suarez Mayor - City of Miami P.O. Box 330708 Miami, FL 33233-0708 Re: Attorneys' Fees - Roberto Baez Our File No. 19-0781-91 Dear Mayor Suarez: The undersigned represents Sgt. Roberto Baez, a 16-year veteran of the City of Miami Police Department. In November of 1988, while on duty as a sergeant of police and acting in a supervisory capacity, Sgt. Baez was meeting with two uniform police officers working under his supervision and control for the purpose of collecting police reports that they had written that day. Three uniform police officers (including Sgt. Baez) in two marked police units had rendezvoused at an abandoned gas station near the Flagler Street bridge on the south side of the Miami River. The officers observed a high performance sports car being driven in an erratic manner. The car was coming from a part of the City that was known to be a "high crime" area and particularly an area where cocaine and other controlled substances were regularly and openly sold on the streets. One of the two officers who had responded to Sgt. Baez' radio message for the rendezvous stepped out into the street and flagged down the car. At that time it was being driven in the vicinity of 40 miles per hour or more. The driver of the car brought the vehicle to a stop and was asked whether he had a driver's license. The driver was told to pull around the corner and produce his driver's license. After giving a verbal response in the affirmative, the driver then turned the corner and accelerated at a high rate of speed attempting to elude the officers. The three officers and two cars immediately gave chase. Sgt. Baez was driving one vehicle accompanied by one of the officers while 33 93- 795 The Honorable December 31, Page 2 Xavier Suarez 1992 the third officer was driving the other marked unit. Full emergency equipment 'and signals were being utilized (sirens and flashing lights) . The time of day was approximately 4:30 p.m. The offender in the fleeing vehicle followed a course that led along N.W. South River. Drive through traffic construction to N.W. 2nd Street. He continued to accelerate, opening the distance between him and the pursuing police vehicles. The police vehicles on at least one occasion were able to gain some ground while the offender temporarily lost control of his car, but shortly thereafter regained control and continued on his way. The offender turned left and proceeded in a westbound direction on N.W. 2nd Street with the two marked police units in hot pursuit. When he approached the intersection of N.W. 2nd Street and 8th Avenue, he attempted to negotiate a right hand turn, but due, among other things, to the high rate of speed at which he was travelling he was unsuccessful. In order to avoid a collision with a northbound car, the offender brought his vehicle to a stop. The police units were but seconds behind. All three police officers exited. their vehicles with weapons drawn. Sgt. Baez, the first on the scene, began to approach the offender who, by then, had exited his vehicle and begun to move away from the car, but had then returned to the open door and made a gesture as though he were attempting to enter and/or retrieve something from the cockpit. Sgt. Baez had by then closed on the offender, and particularly concerned by the offender's apparent efforts to retrieve (or dispose) of something inside the car. As Sgt. Baez was approaching, the offender came back up out of the car, took essentially a vertical position and put his hands on the roof and sloping rear window of the car. Sgt. Baez established physical contact with the offender with his left hand on the offender's left shoulder. At that moment, the offender began to turn his upper torso and head to the left while at the same time jerking his upper body and head backward in what some witnesses described as a spasmodic fashion. The combination of the body, shoulder and head movements by the offender caused Sgt. Baez' Glock 9mm semi -automatic to discharge. Autopsy findings later showed that the offender had cocaine metabolites in his system. Evidence gathered also established that the offender had unlawfully removed money from his "girlfriend's" bank account by misusing her ATM card. An investigation concerning the offender also established that he was an habitual user of crack cocaine and had a long history of violence. In 1989, Baez was charged with.one count of manslaughter. On the day before the case was scheduled for trial, the state announced a 3 (�� nolle prosequi (dismissal) of the charges. 93- 795 The Honorable December 31, Page 3 Xavier Suarez 1992 The matter was then returned to the City of Miami for administrative action and in July 1992, Baez was discharged from his employment, despite a recommendation from the Police Department Shooting Board that Baez receive only a minor reprimand. The matter was presented to the City of Miami Civil Service Board in early December 1992, and the Board, by a 4 to 1 vote, found Baez not guilty of all charges, thereby causing his reinstatement to employment. Under the provisions of the City Charter, Civil Service Rules and the decisions of the Florida Supreme Court, the City Manager is bound to abide by a finding of not guilty by the Civil Service Board. The City of Miami does not provide counsel to police officers indicted for offenses incurred in the line of duty and accordingly, Baez was required to seek his own representation. As a result of the complexity of that case, Baez incurred attorneys' fees and costs in the amount of $132,112.47. (This does not include $34,789.21 which has already been reimbursed for taxable costs by Metropolitan Dade County.) The figures set forth in this letter are attorneys' fees and untaxed costs. Pursuant to the common law of Florida as established by the Florida Supreme Court in Thornber v. City of Fort Walton Beach, Lomello v. Cites of Sunrise and Branca v. City of Miramar, Baez is entitled to be reimbursed for all costs and fees incurred in the successful defense of this criminal action. We hereby request that you take the necessary steps to secure the reimbursement of those monies to B. RDK:jm cc: Al Cotera, President FOP Lodge 20 93- 795 rtc=1�;u1r/��v��tt'C C �uTI IN �'osS CITY MANAGERS OFFICE-28 - it .� Gtlr.•!4 f r C.c. 01* -e.- - - - A, AM; r ,r