HomeMy WebLinkAboutR-85-1115J-85-1077
10/29/85
4
RESOLUTION NO. -11 1! 3-
A RESOLUTION AUTHORIZING THE. DIRECTOR OF
FINANCE TO PAY TO MICHAEL MALONEY THE SUM OF
TWELVE THOUSAND FIVE HUNDRED DOLLARS
($12,500), WITHOUT THE ADMISSION OF
LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF
ALL CLAIMS AND DEMANDS AGAINST THE CITY OF
MIAMI AND ANY OF ITS AGENTS OR EMPLOYEES, AND
UPON EXECUTION OF A RELEASE BY EACH
AFOREMENTIONED PARTY RELEASING THE CITY OF
MIAMI AND ANY OF ITS AGENTS OR EMPLOYEES FROM
ALL CLAIMS AND DEMANDS.
WHEREAS, MICHAEL MALONEY, through their attorney, Robert D.
Klausner, Esq. , filed a lawsuit against the City of Miami and
Robert D. Krause, for back wages, damages, and other claims and
demands resulting from the alleged wrongful acts of the City of
Miami in failing to award Veteran's Preference Points, as
required by Chapter 295 of the Florida Statutes to augment the
score achieved by MICHAEL MALONEY on the Civil Service
Examination administered on March 19, 1979, for promotion to the
rank of Lieutenant of Police, and in failing to promote MICHAEL
MALONEY based on his augmented score; and
WHEREAS, the above claim has been investigated by the Labor
i
Relations Office, the City Attorney's Office, and the Department
of Human Resources, said offices and department having
r
j recommended that these claims be settled without the admission of
liability for the sum of Twelve Thousand Five Hundred Dollars
($12,500);
° NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
y
Section 1.
The Director of Finance is hereby authorized
{ to pay to MICHAEL MALONEY the sum of Twelve Thousand Five
Hundred Dollars ($12,500), without the admission of liability,
in full and complete settlement of all claims and demands
against the City of Miami and any of its agents or employees,
upon the execution of a release by MICHAEL MALONEY releasing the
City of Miami and any of its agents or employees from all claims
and demands. CITY COMMISSION
MEETING OF
NOV 226 1985
r RESQWi;il. Uvr' lit
4
V.-
PASSED AND ADOPTED this 26th day of NOVEMBER , 1985.
XAVIER L. SUAREZ, MAYOR
AT T
a
MXTTY HIRAI
CITY CLERK
PREPARED AND APPROVED BY:
i
ALBERTINE B. SMITH
ASSISTANT CITY ATTORNEY
APPROVED A TO ORM AND CORRECTNESS:
i
LUCIA A. DOUGHER Y
,
CITY ATTORNEY
ABS/wpc/ab/B293
Hono
TO of X
CITY OF MIAM1, FLORIDA ��
INTEROFFICE MEMORANDUM
yor and Members October 30, 1985
Commission
DATE ME
FROM Lucia Dougherty
City At rney
Resolution of the Claim of
SUBJECT MICHAEL MALONEY for Veteran's
Preference Points
REFEREVGES
ENCLOSURES
(Resolution)
Michael Maloney, who is now a Lieutenant of Police in the
City of Miami Police Department, was a military veteran at the
time of his employment by the City on November 25, 1961. He was
recently promoted to Lieutenant after passing the 1984-85 Police
Lieutenant's Promotional Examination.
On March 19, 1979, Michael Maloney, then a Sergeant of
Police, took a civil service examination for promotion to
Lieutenant. He passed the examination and sought to have his
score augmented by veteran's preference points in accordance with
State law. The Department of Human Resources did not add
preference points to Michael Maloney's score on the 1979 examina-
tion. (A copy of the 1979 Lieutenant's promotional register is
attached.)
The awarding of veteran's preference points is governed by
Chapter 295 of the Florida Statutes. An amendment of Section 295,
specifically 295.09(c), which was in effect between June 20, 1978
and July 5, 1980, provided for the awarding of preference points
on a veteran's first promotion after employment, reinstatement,
or reemployment. (Before June 201 1978, the law provided, as it
does now, that preference points are awarded on a veteran's first
promotion after reinstatement or reemployment without excep-
tion.) Under the lawr an eligible veteran was entitled to have
five preference points (or ten if disabled) added to his examina-
tion score and to be "promoted ahead of all those who appear in
an equal or lesser position on the promotional register".
Because there was confusion over the applicability of the
amended statute, the City Attorney's Office requested an opinion
from the Attorney General on the following questions:
1. Does Section 295.09, Florida Statutes, as amended by Chapter
78-372, Laws of Florida, entitle. eligible Veterans and other
qualified persons to receive Veteran's Preference Points on
promotional examination regardless of whether such persons
have already been awarded Preference Points on examinations
'required for entrance into employment?
{
1
5;
To: Mayor and Members of -2- October 30, 1985
the City Commission
Re: Michael Maloney
f
2. Does Section 295.09, Florida Statutes, as amended by Chapter
78-372, Laws of Florida, provide that eligible Veterans and
other qualified persons who are now entitled to Veter•an's
Preference Points on promotional examinations, may apply
such Points to their first promotion since the effective
date of the amendment regardless of whether such person may
have received any earlier promotions?
The Attorney General's Opinion is summarized below:
1. Section 295.09, Florida Statutes (1978), entitles
certain Veterans and other eligible persons to receive
Preference Points toward their first promotion after
employment, as well as after reinstatement or reemploy-
ment, regardless of whether such persons received
Preference Points upon their entrance into employment.
2. Under Section 295.09, Florida Statutes (1978), certain
Veterans and other eligible persons who have not yet
been awarded Veteran's Preference Points towards their
promotion as authorized under the amended Statute, are
entitled to the benefit of such Points until the
receipt of the "first" promotion under the Act regard-
less of whether such persons received any prior
promotions.
The City Attorney, in a legal opinion on the same questions,
rendered after the Attorney General's Opinion had been received,
contradicted the Attorney General's Opinion and stated the City's
position as follows:
"If a person (such as a Sergeant of Police]
has received a promotion after employment with
no interfering military service, he is not
entitled to Veteran's Preference Points on any
other promotion." (MIA-79-17, May 15, 1979).
It was the City's position that the Attorney General's
Opinion was advisory only and that the Attorney General had
misconstrued the statute. However, when lawsuits challenging the
City's interpretation of the amended statute were filed, the
Courts agreed with the Attorney General that "first promotion"
referred to a person's first promotion under the provisions of
the amended statute.
�j
i
w
To: Mayor and Members of -2- October 30, 1985
the City Commission
Re: Michael Maloney
2. Does Section 295.09, Florida Statutes, as amended by Chapter
78-372, Laws of Florida, provide that eligible Veterans and
other qualified persons who are now entitled to Veter•an's
Preference Points on promotional examinations, may apply
such Points to their first promotion since the effective
date of the amendment regardless of whether such person may
have received any earlier promotions?
The Attorney General's Opinion is summarized below:
1. Section 295.09, Florida Statutes (1978), entitles
certain Veterans and other eligible persons to receive
Preference Points toward their first promotion after
employment, as well as after reinstatement or reemploy-
ment, regardless of whether such persons received
Preference Points upon their entrance into employment.
2. Under Section 295.09, Florida Statutes (1978), certain
Veterans and other eligible persons who have not yet
been awarded Veteran's Preference Points towards their
promotion as authorized under the amended Statute, are
entitled to the benefit of such Points until the
receipt of the "first" promotion under the Act regard-
less of whether such persons received any prior
promotions.
The City Attorney, in a legal opinion on the same questions,
rendered after the Attorney General's Opinion had been received,
contradicted the Attorney General's Opinion and stated the City's
position as follows:
"If a person [such as a Sergeant of Police]
has received a promotion after employment with
no interfering military service, he is not
entitled to Veteran's Preference Points on any
other promotion." (MIA-79-17, May 15, 1979).
It was the City's position that the Attorney General's
Opinion was advisory only and that the Attorney General had
misconstrued the statute. However, when lawsuits challenging the
City's interpretation of the amended statute were filed, the
Courts agreed with the Attorney General that "first promotion"
referred to a person's first promotion under the provisions of
the amended statute.
To: Mayor and Members of -3- October 30, 1985
the City Commission
Re: Michael Maloney
Two
early lawsuits
filed by City employees
concerning
Veteran's
Preference Points
under the provisions of the
amended
Statute were Farrington
vs. City and Joyce vs. City.
The City
lost both
cases in Circuit Court and appealed to
the Third
District
Court of Appeal.
The Third District Court
of Appeal
affirmed
the judgment of
the Circuit Court in each
case. The
City then
appealed to the
Florida Supreme Court.
In December, 1981, after the Supreme Court declined to
review the action of the Third District Court of Appeal in the
Farrington and Joyce cases, the City complied with the orders of
the Circuit Court Judges which provided that Farrington and Joyce
be awarded Veteran's Preference Points, promotions, and back pay.
Costs and attorney's fees were also awarded as required by
5295.14(2), F.S. (1978).
Michael Maloney, who was eligible to have preference points
added to his score on the 1979 examination, just as Farrington
and Joyce were eligible to receive the Points, filed a lawsuit
against the City on July 25, 1983.
The issues involved in this case are complicated by the fact
that Homer Lanier, a non -veteran who was number 21 on the 1979
Lieutenant's register, was promoted on June 23, 1980. Maloney, at
number 22 on the register, would have scored higher than Lanier
if the preference points had been added. The promotion of Lanier
on June 23, 1980 exacerbated the situation because in addition to
the City's failure to add preference points to Maloney's score on
the 1979 examination, a non -veteran, whose score was lower than
Maloney's would have been had the points been added, was
promoted and Maloney was not.
I have been informed that Homer Lanier's promotion was the
result of an oral agreement between Lanier's attorney and City
officials to settle Lanier's lawsuit regarding the 1977 examina-
tion for Lieutenant of Police. However, the notation "6/23/80"
beside Lanier's name on the 1979 register and similar notations
of dates beside the names of all persons who were promoted
suggest that he (Lanier) was promoted from the 1979 register.
Additionally, when Robert Krause was asked, while testifying at a
Civil Service Board hearing, whether Homer Lanier was promoted
from the 1979 register, his answer was, "Yes and no". Addition-
ally, the attached memorandum from Kenneth Harms to George Knox
dated January 3, 1980, indicates that Lanier was promoted from
the 1979 Lieutenant's Register.
0 0
To: Mayor and Members of -4- October 30, 1985
the City Commission
Re: Michael Maloney
According to calculations received from Department of Human
Resources' Senior Personnel Officer Jeffrey Williams, the amount
of back pay to which Maloney would be entitled from June 23,
1980, the date of Lanier's promotion, is $18,500.
Maloney would also have been entitled to attorney's fees as
provided by S295.14(2) F.S. or S448.08 E.S. and to Court costs as
well.
In light of the above, the City Attorney's Office recommends
adoption of the attached Resolution in full and complete settle-
ment of this claim.
ABS/f1/679
ENCLS.
If
RESUL I S OF EXAMINATION
71
`; ► • � •ram �; i:...M •
:���,. �.• LTEvrr�,m;r of i'OLICE 5
:losing Dats for' „�;�• -' ',: , ' -'�:.,� •'' Dote for
Examination
DNA: 10
No. Competing 67 No. Passed 47 No. Foiled 20 INELIG: S
APPL . I.O.
N0. I NO.
'.63-1677
-69-3755
:69-2657
:64-•3375
'u3-2321
:73--CO12
.jam-2527
:72-3719
:67-3233
'65-1234
:51-2574
:55' 1735
'57-3763
:55-0202
'55-0202
.5-S-0519
'68-t1b51
:69-1351
C58-2312
C67-3329
C69-0114
r63-3223
C67-3899I
C66-7727!
L-68-1785'
-63-2109
:73-2487
159-125?
:67-1749
:67-2968
:56-1756
C69-072
C60-326
C60-342
C63-313
r'CO-97,
• . Dote Approved
NAME
PASSED:
25
rai-ne, Tr.orr..0 r . -- -I 7� Ra Alt
47
En li si, _ •t _ A.
Azt
Z4
relly, Mcc-nzl J. <o -213 -90
All
31
Sullivan,
AN
44
P(Itzaut, Ft: ,iterick A. 7- 1-7 -
t
70
Shepard. r:•,rl M. 7�y3/ -71 A
1y�
2
.r-I(
Anderson, T_•rry L.
E.'t
54'
11-pldv!m, Steven L.
All
3
Jonen. X chaf : A.
Ail
5
Nelson, .911liam C.
AM
43
CzliY a rr., . 7-ranklix ' P.
A3
8
Ta=x*agtxn,
AN
is
' Eramt, Tmbrmt• 11.
AN
6
Carter, M.-alm
AF
22
LiOke, MItan J.
AM
45
_- rodnk, Ualt ar A.
AH
9
Dyer, Rob t;r t M.
A8
29
Gross, :ticnael W.
AM
7
Cur., Jamey R.
AX
1
56
P,cntley, Ronald
Lanier, }toner -- G - 13
AN
3.r
15
Maloney, Michael E.
AH
52
Carberry. Eduard J.
AH
58
Lu: f. Edward H.
All.
59.
Rroum, Ronald P.,.
AH
34
Obrien, John E.
AH
23
Rcl•rtolds, Charles W.
Ay
39
Sampson, Alexander R.
,gH
14
Landis.- Vinccnt A.
AM
46
S:mith, Vincent J.
JAM
68
lxasburz. *Russell E.
AH
33
Fankert, Tarry P.
AH
30
Davis. Nornan E.
AH
49
Vance, Robert: S.
53
rerean, Ccrald N.
AH
r•---»- "s _t - . .
VETS. I FINAL' REG.
PREF: GRADE
0
0
0
0
0
0
0
.0
0
0
D
0
0
0
0
0
0
0
0
0
0
0'
0
0
0
0
0
0
0•
102.41
101.46
97.20
96.33
94.31
93.39
91.144
89.63
C9.22
87.57
R7.49
W. a3
564 U
95.55
79.95
79.R2
79.49
79.45
79.08
73.19
73.92
75.50
75.12
74.99
74.05
71 36
71.35
70.71%
69.47
67.50
66 - 72
• 65.87
65.72
63.94
61.08
i:} '--1115
2
.4
6
7
8
9.
1Q
II
12
13
14
15
36
17
1.8
19
2n
• 21
22
23
24
25
26
'7
2R
29
30
31
32
33
34
35
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Applicohon
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-
No. Comp2tin9 • • - Nb.' Passed No. Foiled
DNA:
INELIG:
Dote Approved
APPL• 1'D' NAN.E VETS. FINAL REG.
NO. • NO. PREF: GRADE
iC67-2010
69
C69-1211
51
CGS-3692
27
.C56-1654
18
CG9-0468
32
C70-1120
• 64
C62-0524
23
C69-0762
19
C70.0547
12
c72-3519
41
763-38b
:67-315
::66•-905
'70-379
--66-3324
Z53-23091
.:57-30691
:72-39181
:65-2318
:56-1277
:72-1639
:71-4380
64-3106
*61-2595
:59-199
.64-4285
:57-978
:f.9-3181
:50-569
.56-253
04 r 3
0916
B917
0910
0919
0924
0925
0989
U929
0932
0934
0938
0948
0949
0959
0960
0961
0982
0986
0987
0923
•
PASSED CCo-It...) :
P.Ice, Douglas 14.
AM
0
Daniels, Charles E.
F.4
0
Alvarez, No J.
L`t
0
Casale, l ouis A.
AM
0
White. Paul
A:d
1 ' 0
March, William E.
AM
0
Chamberlain, Ralph
AM
0
Martinez, Walter D.
Lm
0
Teller, Eugene
Ul
0
Williams, Robert D.
Art
0
FAILED:
'-Ahearn, 141chael
AM
Apte, Robert
AM
Bach, Harvey S.
AM
Baez, Julio
LM
-Bailey, Daniel H:
BM
Bodea, Alex
AM
' Boyd, Robert Allen
BM
Cabrera, Cmilio
L14
Campbell,'V. T.
AM
Chapek, John H..
AM
Christopher, M. L.
Ali
Diaz, Manuel Mayne
LM
Hatton, John Carl ".
A11
Hatton, Lacey Lee
�AM
•Lee, C. K.
BM
Liles, Kenneth E.
AM
Love, Norris E.
Ali
Veal, Nathaniel
Bli
Ifebb, Robert E.
AM
lliggins, Bruce R....•.
Ali
' DID NOT APF AR:'r: •=:'-=;"' - • ' ' ...
Disbop, Harold ti�il]iaat•
Ay
.
59.74
58.SR
58.75
57:74
57.42
57.17
56.44
55.86
52.82
52.46
38
39
4n
•41
42
43
44
45
46
47
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No. Cdnlpaiinr ft..r• �+.. _,+. -� r r
.:, ' , • . Dare Approved
A•PPL
NO.
CGD-534
C56-3652
C59-375
C62-1225
C57-1905
C66-497
C66-198
C56-1729
CZ2-430
671-5401
:74-86�i
72-3691
:T2-4064
''69-1GI0
:63-b60
:69-1336
0947
0950
0952
0954
0967
0980
0983
0934
NAM E
DID NOT /+PPEA;t
Hanel--,, Ronald W.
2Tu:it, Joe x?.
Ingram, Robert B.
Krawer, Edgar C.
Nassberg, Charlca
Travis, Steven L.
Vivian, 'Ernest V.
UnIsh, ?�'illi.�la T. i
IN ICIELL:
had ermm- .'Patrick F.
Be ntle=, Judith H.
Mar'g=, Uilli:� R.
Cribb,' Brendon J.
Ibrahim, Anibla E.
P•cynolds, C. F.
Seaman, Theodore C.
T•'estPv, Eduard
VETS.. FwAL
rREF, C•R/,DE REG.
AH
PD1
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Ali
AN
AM
AM
AN -
m! -
Ar
AM
rr.
LM
AX
AH
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