HomeMy WebLinkAboutR-91-0741J-91-903
10/0 3/91
RESOLUTION NO. � 7 4 1
A RESOLUTION AUTHORIZING THE DIRECTOR OF THE
FINANCE DEPARTMENT TO ISSUE A CHECK PAYABLE
TO THE TRUST ACCOUNT OF ATKINSON. JENNE,
DINER, STONE, COHEN & KLAUSNER. P.A. IN THE
AMOUNT OF $16,611.23, FOR ATTORNEY'S FEES IN
THE AMOUNT OF $15,995.00 AND COURT COSTS IN
THE AMOUNT OF $616.23 INCURRED BY MARTIN
GARCIA AND ALBERTO PUMARIEGA IN THE CASE OF
BARRY V. GARCIA, CIRCUIT COURT CASE NO. 89-
14873, THIRD DISTRICT COURT OF APPEAL CASE
NO. 89-1784, AND FLORIDA SUPREME COURT CASE
NO. 77,458 AND ALLOCATING FUNDS THEREFOR FROM
SPECIAL PROGRAMS AND ACCOUNTS, CONTINGENT
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 Atkinson, Jenne, Diner, Stone, Cohen &
Klausner, P.A. in the amount of $16,611.23, for attorney's fees
in the amount of $15,995.00 and court costs in the amount of
$616.23 incurred by Martin Garcia and Alberto Pumariega in the
case of Barry v. Garcia, Circuit Court Case No. 89-14873, Third
District Court of Appeal Case No. 89-1784, and Florida Supreme
Court Case No. 77,458, with funds therefor being hereby allocated
from Special Programs and Accounts, Contingent Fund.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 3rd day of Octp"r 1991.
ATTES
MATTY HIRAI
CITY CLERK
SUAREZ, MAYOR
BUDGETARY REVIEW AND APPROVAL:
k&
MANOHAR S. SURA IRECTOR
DEPARTMENT OF BU
PREPARED AND APPROVED BY:
..". — 7 ► d
ALBERTINE B. SMITH
CHIEF ASSISTANT CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
a. e=S., /% //%. //,
Al. QU4N.N JOVFSv, III
CITY ATTOR E
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09. 28. 91 02 : 44 PM *AT2CZNW0N+ J=NNR, 32
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A TIGNS ON, JENNEF, DINEX STONE, COHEN & UCLA uSNER
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DAVID W. Ducx
DAviD B. MANKvrA
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DIAN[ ANGULA
Miyoau P. GIUEr,
PAINCK I. NWON
JUDITH A. How
September 24, 1991
The Honorable Xavier L. Suarez, Mayor
City of Miami
P.O. Box 330708
Miami, FL 33233-0708
PasT omet omwe lose
HMWWOW. FWWA 35W-2088
9'atrNortt (305) 9a-5501
100 RATON (407) 429.388I
who (303) 944.1862
ZtWW! (30s) 9*V11
Re: Martin Garcia and Alberto Pumariega
File No.: 19-0274-90
Dear Mayor Suarez;
As a follow-up to my appearance at the City Commission on September
11, 1991, the following is a summary of the events which gave rise
to the litigation between the Independent Review Panel and Officers
Garcia and Pumari"a. Also attached is a listing of the hours tor;
legal services spent in the defense of that action. I have Wj
included any hours related to the filing of an unfair labor
practice by the FOP against the City over this incident or for
client conferences.
I have also sat the foe at the same discounted hourly rate charged
to the FOP.
Should you have any questions about /the summary or the legal
services rendered. please advise.
Very t f4 vein)
RDK:aln
Enclosures
SEP-26-91 THU 13:41 977846.6
09. 2e. 91 02 0 44 PM AIrst2"WON, JzNNH- P03
AMAMUN Imam
rn January 1991, the Commission passed Resolution 89-84
delegating its subpoena power under Section 14 of the City Charter
to the Independent Review Panel. The following day, the FOP,
through counsel, advised the City Commission of the doubtful
legality of that resolution.
In early March of 19900 the Independent Review Panel
subpoenaed officers Garcia and Pumariega to the Review Panel.
Counsel for the FOP advised counsel for the panel of its position
regarding the doubtful legality of the subpoenas and the parties
reached an agreement that the subpoenas would not be enforced while
the Fop pursued a judicial declaration of the legality of that
resolution.
The FOP offered at the same time to encourage members to
voluntarily attend panel interviews anytime they are "invited" as
opposed to being involuntarily subpoenaed. FOP President, Dick
Kinns, voluntarily appeared before the panel following an
invitation.
Despite its earlier agreement to the contrary, the Review
Panel, three days later, sought Rules to Show Cause seeking to have
Pumariega and Garcia held in contempt of court for refusing to
honor their subpoenas. Garcia and Pumariaga were therefore forced
to defend themselves in the contempt proceeding.
In May of 1989, a hearing was held in front of Judge Robert
Kaye, Dade County Circuit Judge who held Resolution 89-84 to be
invalid as violating Section 14 of the City Charter concerning
possession of thi right to subpoena power.
The independent Review Panel appeals two days after the
issuance of Judge Kaye's written order, and the City Attorney's
Office joins in the appeal on behalf of the Panel.
On March IS, 1990, oral argument is held at the Third District
Court of Appeal and on January 15, 1991 the Court issues its
opinion upholding Judge Kaye's order. The District Court of Appeal
found that Resolution 89-84 was an unlawful delegation of subpoena
power from the Commission to the Review Panel. This is precisely
the ground which POP had asserted as illegal the day following the
adoption of Resolution 89-94,
The Independent Review Panel, then, appealed the Third
District Court decision to the Florida Supreme Court. The City
also intervened on the panel's behalf at the Supreme Court level.
On June 12, 199i, the Supreme Court refused to review the
Third District Court of Appeal decision and danied further review.
The intervention of the City Attorney's office, at all levelss
SEP-26-91 THU 13:42 9778466 P.03
y1� 741
09. 28. 91 02 : 44 PM AIrXIN0ON, ,JENNE, PO4
0
in this proceeding, substantially increased the cost of litigation,
as well as delayed the completion of this process. The: FOP offered
initially to accommodate the Review Panel, provide it was willing
to voluntarily invite members as opposed to subpoena. The Panel
refused and initiated that prosecution against Garcia and Pumariega.
Garcia and Pumarioga had no choice but to defend the action against
them. After the panel proved unsuccessful at the Circuit Court,
1 the panel sought additional funds from the City Commission to
proseouts the appeal on the Third District. After it was
unsuccessful in the Third District, the Panel sought additional
funds to prosecute the unsuccessful appeal in the Florida Supreme
Court.
SEP-26-91 THU
9778466
a
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09. 28. 91 02' 44 PM *�ATI{INa0NP JLNNE+ P05
!il�t0l�bLbtiLY b! EVl1�iT8
1/19/698 City commission passes Resolution 69-84. Resolution
is reviewed by POP president and POP legal advisors.
1/19/89: A letter rent to Mayor Suarez by FOP Attorney,
Klausner, noting that Resolution 89-94 violates the City Charter as
an unlawful delegation of subpoena power.
3/06/891 First subpoenas are issued to Garcia and Pumarisga.
3/10/69: Conference with counsel for Independent Review Panel
regarding protective order for Garcia and Pumariega.
3/20/89: FOP filed suit for a declaration construing the
{ legality of Resolution 89-94.
3/20/89: Agreement reached with counsel for Independent
Review panel that no further subpoenas would be issued until
question of panel's power to issue subpoenas is clarified in a
court of law.
' 4/03/89: Counsel for FOP advises counsel for Independent
Review Panel that while subpoenas will not be honored that FOP
President and FOP Executive Board Members would honor any voluntary
i invitation issued by review panel.
i
4/07/89: Panel files petitions for rules to show cause why
Garcia and Pumariega should not be held in contempt of court for
refusing to honor subpoenas.
4/10/89: Skew cause orders issue to Garcia and Pumariega.
— f ;
{ 5/26/891 Final Hearing held on Motions for Rule to $how
i Cause. Judge Kaye finds that Ordinance 89-84 violates City Charter
# as an unlawful delegation of subpoena power and dismisses show
j cause orders.
6/23/89: Judge Kay issues final written decision.
�6/26/89: Independent Review Panel files a
j Kaye s Order. appeal of Judge
II
9/26/891 City moves to intervene as a party in Third District
Court proceeding, court permits filing of brief only.
f a
i
3/15/901 Final Mearing held before panel of the Third
�§ District Court of Appeal.
1/15/911 Third District Court of Ap
peal issues -unanimous
.:# opinion affirming Judge Kaye's order. Court finds that Resolution
89-84 is an unlawful delegation of subpoena power.
i hI
SEP-26-91 THU 13:43 977$466 P.05
09. 215. 91 02 44 PM *A'rX I NOON, JKNNKI P 0 6
3
I
1/3L/91% Independent Review Panel files Notion for Rehearing
after expiration of time for such motions is permitted. Review
panel files motion to recall mandate.
2/14/91: Panel files appeal in Florida Supreme court.
2/26/911 City attempts to intervene on Panel's behalf in
Supreme Court proceeding# notion is denied.
6/12/911 Supreme Court refuses to accept jurisdiction and
dismisses appeal.
SEP-26-91 THU
i
Off. 26. 91
02 44 P1vI �AT�{YNl�rON, JENN1:.
F'r7?
i
1/18/69
t�etnce d! aSLj�y��
Review Resolution; research on Subpoenas
4.0
1/19/99
Letter to Suarez
0.5
f
3/00/89
Research and preparation for suit
2.0
'
3/09/69
Research on delegation of subpoenas;
research on resolution vot charter
amendment
9.0
3/10/89
Conference with Harold Long; research
rat protective order
4.23 -
3/20/89
Preparation of declaratory relief
complaint
4.0
3/21/89
Preparation of declaratory relief
complaint
4.0
3/23/69
File and serve complaint
0.5
j
4/03/09
Preparation of amendments to complaint
4.0
i
4/04/89
Conference with City Attorney; conference
with Harold Long; research re: show cause
order
2.0
4/18/89
Research rat response to rule to show
cause
3.0
4/23/89
Preparation for contempt hearing
3.5
4/24/89
Preparation for hearingl preparation for
t
affidavits
Ito
4/26/89
Attendance at hearing
31.0
5/03/89
Letter to Harold Lonq; reply to
affirmative defenses
2.5
t
a
5/24/89
Review ti !
,�
tno on or summaery judgment liled
by City and oases cited 4.5
5/25/89
Preparation for Final Hearing
4.0
y'•
5/26/99
Attendance at hearing
3.0
J,
5/27/89
Preparation of Order
Ito
(
6/07/89
Review of motion to expedite hearing
0.3
I
6/24/89
Review Order from Judge Kaye
i
SEP-26-91 THU
13:44 9TTS466
P.07
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09. 26, 91 02 : 44 PM WAOrKIMMONO jz"MR, P06
9/14/89
9126/89
11/14/89
11/15/09
12/08/89
12/10/89
12/17/89
12/21/89
12/22/89
1/05/90
1/30/90
1/31/90
3/13/90
3/14/90
3/13190
3/16/90
1/16/91
2/02/91
2/03/91
2/04/91
2/27/91
2/29/91
3/05/91
3/12/91
SEP-26-91 7HU
0
Review record on appeal
0.3
Review City's motion to intervene
0.2
Review Panel's brief and *awes cited
4.0
Review City brief and oases cited
460
Research for answer brief
9.0
Research for answer brief
6.0
Prepare brief
8.0
Prepare brie!; prepare motion to dismiss
appeal; prepare memorandum of law in
support of motion
8.0
Complete brief
4.0
Review response to motion
0.3
Review reply brief of City
3.0
Review reply brief of Panel
1.0
Preparation for oral argument
4.0
Preparation for oral argument
4.0
AtIond oral argument
2,0
Review motion for supplemental authority
and cases cited
1.0
Review Third District opinion
015
Review motion for rehearing) motion to
recall mandatel research and preparation
of response
3.0
Research on recall of mandate
2.0
Prepare response to notion
1.0
Review panel's brief on jurisdiction
and oases cited1 review motion to
intervene by City 2.5
z
Review order denying motion to intervene 0.1
Research rot answer brief 5.0
Prepare answer brief and appendix 9.0 "
13:45
D9. 26. 91 02 : 44 PM *ATt{*Nis 0N, JR11Ng+ P09
3/13/91
Complete answer brief and Appendix
6.0
3/13/91
Review order
0.1
5/14/91
Review notice of supplemental authority
and case attached
0.2
6/14/91
Review supreme Court order
0.1
8/15/91
Research re: att.orne 's fetal letter to
Mayor Suarez with exhibits
215
9/10/91
Further research on attorney's fees;
preparation for appearance at City
Commission meeting
1.5
9/11/91
Attend City Commi.6sion meeting
3.5
9/23/91
Review records for preparation of summary
2.0
9/24/91
preparation of summary
1.0
Total Hours:
159.95
Total Feast
($100.00 per hour) $151995.00
Court Costs: (Filing Fees, Transcripts,. Courier 616.23
service, Computer Research Charges,
service of Process)
TOTAL FEES AND COSTS;
$16,611.23