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HomeMy WebLinkAboutR-84-07190 J-84-619 6/28/84 rr/007/R7 RESOLUTION NO. 84"'"719 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE- THE ATTACHED ST TPi_iLATION OF SETTLEMENT CONCI-RNING CASE" NO. 84-0550-C i v--5MA. A l_AW51.11 T F ILED BY KENNETH 1. HARMS AGAINST THE CITY OF MIAMI AND CERTAIN CITY OFFICIALS. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI$ FLORIDA: Section 1. The City Manager is hereby authorized to execute the attached Stipulation of Settlement concerning Case No. 84-0550-Civ-SMA, a lawsuit filed by Kenneth I. Harms against the City of Miami and certain City officials. PASSED AND ADOPTED this 28th day of June , 1984. Maurice A. Ferre TEST: TA PREPARED AND APPROVED BY; BERT F:CLAKK DEPUTY CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: 5 - ITY ATTORNEY CITY COMMISSION MEETING OF - JUN 28 1364 W k] CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM TO. Honorable Mayor and Members of the City Commission FROM: Howard V . Gary _Y66- City Manager DATE: June 7, 1984 FILE: SUBJECT+ Result of Settlement Negotiations - Harms Lawsuit REFERENCES: ENCLOSURES: This memorandum will formally transmit the attached Stipulation of Settlement between the City of Miami and Kenneth Harms. Nego- tiations for settlement began at the request of Harms' attorneys, Mr. Josefsberg and Mr. Falk, and were conducted within the parameters that Mr. Harms would not receive any other compensation other than that due him as an employee, nor include any compensation to his attorneys by the City. The stipulation provides Mr. Harms an opportunity for full service retirement, compensation for his accrued vacation, sick and compensatory time, as afforded all City retirees. It is theoretically possible for this process to take up to four years at which time Mr. Harms would reach the present minimum retirement age of 50. However it is anticipated that the implementation of the Rule of 70 (the sum of age plus years service equal 70) will become effective before year's end. Accord has been reached with the Retirement System Board and unions. The remaining step, legal work relative to the resolu- tion of the Gates lawsuit is in progress now. Mr. Harms' total years service and age will equal to 70 on June 11, 1984. Upon implementation of the Rule of 70 or reaching age 50 the settlement requires that he immediately retire from City service. Air. Harms' retirement will probably become effective within three or four months or no later than the end of the year, which is the time the Gates case is expected to conclude. The benefits that Mr. Harms will receive by virtue of this settlement are consistent with those of a Police Captain. Mr. Harms will receive compensation on a progressively declining basis through the first year of this agreement, after which he will receive a nominal $100 per month. It is the contention of Mr. Peter J. Hurtgen, Special Counsel, and I concur, that the City of Miami would prevail throughout litigation of the Harms lawsuit. However, the City is saved the expense and aggravation of a protracted legal effort and the City and new Police Administration is not burdened by a continuing problem. I am confident that the Stipulation of Agreement serves the best interest of the City of Miami. k 111M• e N STIPULATION OF SETTLEMENT Plaintiff KENNETH I. HARMS and defendants CITY OF MIAMI and HOWARD GARY, individually and as City Manager of the City of Miami, desiring to amicably resolve and fully settle between them an action styled KENNETH I. HARMS v. CITY OF MIAMI, a municipal corporation; HOWARD V. GARY, individuaJ.l.y and as CITY MANAGER of the City of: Miami; MAURICE FERRE, individually and as MAYOR and COMMISSIONER of the City of Miami; J.L. PLUMMER and MILLER DAWKINS, BOTH INDIVIDUALLY AND AS COMMISSIONERS of the City of Miami, Case No. 84-0550-Civ-SMA, which action is now pending in the United States District Court for the Southern District of Florida (hereinafter referred to as "Harms ,r. City of Miami"), hereby stipulate and agree as follows: FIRST: Upon execution of this Stipulation of Settlement and during the maintenance of the conditions set forth hereinafter, the status of Plaintiff as an employee of'the City of Miami shall be as follows: (i) Plaintiff will. submit a letter of resignation as Chief of Police and voluntarily occupying the position of Police Captain effective January 26, 1984, which letter will be accepted; (ii) In consideration of Plaintiff's accrued sick leave balance and long service to the City, he shall. be placed on administrative assignment at his current rate of pay for a period « A- 94-71S not to exceed five and one-half (5-1/2) months commencing April 26, 1984. If he obtains gainful employment from any other person or entity during this period, he will continue to be carried at his same rate of pay and his pension contributions will be continued on that basis. If his salary from the City of Miami and the other employer exceed SIX THOUSAND FIVE HUNDRED DOLLARS ($6,500.00) per month, an offset shall be made to reduce the amount received by him from the City of Miami so that the combined total does not exceed SIX THOUSAND FIVE HUNDRED DOLLARS ($6,500.00) per month; (iii) Upon expiration of the period set forth in Paragraph First (ii), Plaintiff shall continue on administrative assignment for an additional six and one-half (6-1/2) months at the same rate of pay as required by his classification and his pension contributions will be continued on that basis. An offset will be taken from his gross pay so that the total received from the City of Miami does not exceed TWO THOUSAND SEVEN HUNDRED SEVENTY DOLLARS ($2,770.00) per month. If he obtains gainful employment during this period, and if his salary from the other employer exceeds THREE THOUSAND SEVEN HUNDRED THIRTY DOLLARS ($3,730.00) per month, his salary from the City of Miami shall be further offset by the amount his other salary exceeds THREE THOUSAND SEVEN HUNDRED THIRTY DOLLARS ($3,730.00) per month; (iv) Upon expiration of the period set forth in Paragraph First (iii), Plaintiff shall continue on administrative -2- 3 84-7 S assignment at the same rate of pay as required by his classifi- cation and his pension contributions will be continued on that basis. An offset will be taken from his gross pay so that the total received from the City of Miami does not exceed ONE HUNDRED DOLLARS ($100.00) per month. If at any time after the expiration of the period set forth in Paragraph First (iii), and prior to his retirement from the City of Miami, Plaintiff is not gainfully employed by any other person or entity, the amount of offset to be made to his salary received from the City of Miami will be reduced to the level of the offset first provided in Paragraph First (iii), for each month or portion thereof on a pro-rata basis during which he is not gainfully employed. The amounts by which the offset is reduced during periods of unemployment shall be considered an advancement of his vacation or sick leave account balances due him upon retirement until such accounts are depleted. If at any time Plaintiff's salary from the City, after being offset as provided in this Paragraph First (iv) is less than his required pension contribution, he shall pay the required contribution to the Pension System to continue to accrue additional retirement points. (v) Upon becoming eligible for full service retirement under the Miami City Employees Retirement System, whether through "Rule of 70" or attainment of age fifty (50), whichever occurs first, Plaintiff shall apply for such service retirement ten (10) days before the effective date of the q 84-W71 S r111 (`� retirement and his employment with the City of Miami shall cease and his status under Paragraphs First (ii), (iii), and (iv) shall be terminated upon his retirement. Failing the establishment of "Rule of 70" retirement, Plaintiff may elect to vest his retirement at any time before attainment of age fifty (50), or elect to receive an early service retirement- under the provisions of the Miami Code, or continue in his employment status pursuant to the above provisions until attainment of age fifty (50). SECOND: Upon cessation of his employment with the City of Miami through retirement, Plaintiff shall receive vacation, sick leave, and compensatory time account balances in accordance with the following: (i) The parties agree that after clarification of the audit conducted of Plaintiff's vacation accrual balances, that he has Five Hundred Forty (540) vacation hours and that no additional vacation hours shall be earned by Plaintiff from and after April 26, 1984; (ii) Plaintiff's vacation account balance is TWENTY THOUSAND FIFTY-FIVE AND 60/100 DOLLARS ($20,055.60); (iii) The parties agree that Plaintiff's accrued sick leave balance to be paid at his retirement is Nine Hundred Fourteen (914) hours and that no further accrual of sick leave will occur from and after April 26, 1984; (iv) Two Hundred Eighty -Eight (288) of Plaintiff's sick leave hours will be paid at the rate of THIRTY SEVEN AND 4 - 84-'7'11 0 14/100 DOLLARS ($37.14) and Six Hundred Twenty -Six (626) hours of Plaintiff's sick leave hours will be paid at the rate of FOURTEEN AND 91/100 DOLLARS ($14.91), thereby producing a total sick leave balance of TWENTY THOUSAND TWENTY-NINE AND 98/100 DOLLARS ($20,029.98); (v) The parties agree that Plaintiff has One Hundred Fourteen (114) hours of compensatory time which will be paid at the rate of FOURTEEN AND 91/100 DOLLARS ($14.91), thereby producing a total compensatory leave balance of ONE THOUSAND SIX HUNDRED NINTY-NINE AND 74/100 DOLLARS ($1,699.74). THIRD: The parties to this Stipulation of Settlement agree that the events of January, 1.984 which gave rise.to the subject matter of this litigation were matters of principle. The parties further agree that those principles represent distinct points of view concerning the structure and management of the City of Miami Police Department. These matters of principle included the recommendations of Booz, Allen & Hamiiton for reorganization of the Miami Police Department. Accordingly, in )8 „ recognition of these differing principles but without admitting or or denying the allegations contained in the complaint filed in )lied Harms v. City of Miami, the parties to this Stipulation of nt Settlement disavow prior public statements concerning each other and other City officials and employees and set forth herein the city mutual basis upon which they will act in the future. Specifically, the following is acknowledged and agreed upon by (0 -5- ' Y& 6 84-719 84­7 1t C 14/100 DOLLARS ($37.14) and Six Hundred Twenty -Six (626) hours of Plaintiff's sick leave hours will be paid at the rate of FOURTEEN AND 91/1.00 DOLLARS ($14.91), thereby producing a total sick leave balance of TWENTY THOUSAND TWENTY-NINE AND 98/100 DOLLARS ($20,029.98); (v) The parties agree that Plaintiff has One Hundred Fourteen (114) hours of compensatory time which will be paid at the rate of FOURTEEN AND 91/100 DOLLARS ($14.91), thereby producing a total compensatory leave balance of ONE THOUSAND SIX HUNDRED NINTY-NINE AND 74/100 DOLLARS ($1,699.74). THIRD: The parties to this Stipulation of Settlement agree that the events of January, 1984 which gave rise.to the subject matter of this litigation were matters of principle. The parties further agree that those principles represent distinct points of view concerning the structure and management of the City of Miami Police Department. These matters of principle included the recommendations of Booz, Allen & Hamiiton for reorganization of the Miami Police Department. Accordingly, in recognition of these differing principles but without admitting or denying the allegations contained in the complaint filed in Harms v. City of Miami, the parties to this Stipulation of Settlement disavow prior public statements concerning each other and other City officials and employees and set forth herein the mutual basis upon which they will act in the future. Specifically, the following is acknowledged and agreed upon by �' 84-719 0 Howard Gary and by Kenneth Harms: �% (i) The basis upon which Kenneth Harms was charged with insubordination was the result of well-intentioned differences of opinion concerning events and circumstances. In view of discussions and information since obtained, it is clear that, at all material times, Kenneth Harms acted only in pursuit of his responsibilities as Chief of Police in a manner commensurate with that office; (ii) All of Howard Gary's actions were pursuant to his authority as City Manager of the City of Miami. In acting pursuant to his authority, Howard Gary proceeded responsibly, reasonably, and consistent with the public interest; (iii) Any future statements or publications made by Howard Gary or Kenneth Harms, including those of their respective agents and employees to the extent controlled by each of them, shall be reflective of the principles set forth in Paragraph Third and shall conform specifically to the acknowledgments contained in Subsections (i) and (ii) of that Paragraph. It is the intention of the parties to this Stipulation of Settlement that no defamatory statements will be made by either Howard Gary or Kenneth Harms about the other, or by their respective agents and employees to the extent controlled by them; that each will seek to honorably carry out the intent expressed herein regarding each other personally; and that Kenneth Harms will make no adverse statements regarding the City 7 84-71s rs I of Miami, the Police Department of the City of Miami or its administration, officers, men and women. Kenneth Harms and Howard Gary in their individual capacities agree to make no negative or critical statements about each other. personally. FOURTH: The mutual. covenants set forth in Paragraph Third are considered essential. to the continued operation of this Stipulation of Settlement. Accordingly, a breach of those provisions by Kenneth Harms or Howard Gary will be remedied by the payment of TEN THOUSAND DOLLARS ($10,000.00) per breach. Disputes concerning the existence of a breach of this Stipulation of Settlement by either Howard Gary or Kenneth Harms shall be resolved as follows: (i) If any party to this Stipulation of Settlement believes that a breach of the provisions of said Stipulation has occurred, the party and/or its counsel shall give written notice of such breach to the party purportedly committing said breach. Notice to the City of Miami and/or Howard Gary shall be given to the City Attorney for the City of Miami. Notice to Kenneth Harms shall be given to Robert C. Josefsberg, Esq., Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., City National Bank Building, Suite 1201, 25 West Flagler Street, Miami, Florida 33130. (ii) Following receipt by any party of a notice of breach, the parties shall have thirty (30) days within which to confer for purposes of resolving the matters alleged to have been -7- 9 - 84--715 breached. Upon expiration of this thirty -day period, if not extended by mutual agreement, the provisions for arbitration set forth below shall be applicable; (iii) Upon failure to resolve a claim of breach of this Stipulation of Settlement, the party claiming a breach shall invoke arbitration by sending written notice to the other party advising of the alleged breach and the intent to invoke arbitration for resolution thereof. Thereafter, the parties shall have ten (10) days within which to select an arbitrator by mutual agreement. Upon expiration of this ten (10) day period without an arbitrator having been selected, the party claiming a breach shall request a panel of arbitrators from the American Arbitration Association's labor dispute list of arbitrators, from which panel the parties shall select an arbitrator in accordance with the rules of the American Arbitration Association. .(iv) The arbitrator selected shall proceed to determine whether.a breach of this Stipulation of Settlement has occurred. If a breach is found by the arbitrator, it shall be remedied by payment of the penalty set forth in Paragraph Fourth if the breach is of a covenant set forth in Paragraph Third; or remedied as determined by the arbitrator if the breach is of any other paragraph of this Stipulation of Settlement. The party losing the arbitration proceeding shall pay the costs of the arbitrator. The arbitrator shall have discretion to award the payment of attorney fees if (s)he determines such an award to be 61 84--` 1!j equitable under the circumstances. FIFTH: Pursuant to Rule 41 of the Federal Rules of Civil Procedure, and within five days of the finalization of this Stipulation of Settlement, Plaintiff Kenneth Harms shall prepare and file a stipulation of dismissal with prejudice in Harms v. City of Miami, or otherwise move for dismissal of that action with prejudice, each party to bear his or its own costs and attorneys' fees. SIXTH: Pursuant to Rule 1.420 of the Florida Rules of r Civil Procedure, and within five days of the finalization of this Stipulation of Settlement, Plaintiff Kenneth Harms shall dismiss an action styled THE STATE OF FLORIDA ON THE RELATION OF KENNETH I. HARMS v. HERBERT BRESLOW, Case No. 84-07053, which action is pending in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Such stipulation or notice of dismissal shall be with prejudice, each party to bear his or its 1Z own costs and attorneys, fees. SEVENTH: Simultaneously with dismissal of the actions described in Paragraphs Fifth and Sixth above, Plaintiff shall execute a general release in favor of Howard Gary, individually and as City Manager of the City of Miami, and in favor of the City of Miami, its agents, employees, officers and attorneys, in the form set forth in Appendix A to this Stipulation of Settlement. EIGHTH: Upon dismissal of the actions described in -9- D 84-7718 paragraphs FIFTH and SIXTH above, Defendant Gary shall execute a General release in favor of Kenneth Harms in the form set forth in Appendix B of this Stipulation of Settlement. NINTH: The Court shall retain jurisdiction to enforce the terms of this Stipulation of Settlement. TENTH: This Stipulation of Settlement shall be enforce- able and construed according to the laws of the State of Florida. The parties to the Stipulation of Settlement hereby consent and agree to venue and service of process in Miami, Dade County, Florida, in the event any party seeks judicial relief for a breach of the Stipulation of Settlement. ELEVENTH: This Stipulation of Settlement contains the full and complete agreement between Kenneth I. Harms and the City of Miami and Howard Gary, and no oral or implied modifications or agreements not specifically set forth herein exist. No revision, modification or alteration of this Stipulation of Settlement may be made except by means of a written agreement signed by the parties hereto. TWELFTH: This Stipulation of Settlement may be executed in several counterparts, each of which shall be deemed an original -10- ------------- 84 ..771IS, a t { t and said counterparts shall constitute but one and the same instrument which may be sufficiently evidenced by one counterpart. IN WITNESS WHEREOF, Kenneth Z. Harms and Howard Gary have caused this Stipulation of Settlement to be executed by them personally, and the City of Miami has caused this Stipulation of Settlement to be executed by its duly authorized officer and/or agent, effective April 26, 1984. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: / KE METH I. HARMS L HOWAR['O V. GA individually ' and as City M nager of the City of Miami CITY OF MIAMI =1 1 84-71