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HomeMy WebLinkAboutM-84-0225NMW C Honorable Mayor and Members of the City Commission Howard V. Gary City Manager -.r.ci.. _ February 15, 1984 The headline of the February 14, 1984 edition of The Miami Herald,which states "I won't pay repair tab, Gary says" is misleading. The reporter asked me whether the legal opinion meant that I had to repay the $8,000 worth of car repairs. My answer to him was "No," because the legal opinion said that my car benefits are capable of conflicting interpretations (see City Attorney's opinion dated February 10, 1984) and it was my opinion that the car benefits were fair, equitable and in conformance with the benefits outlined in the agreement and agreed upon by the City Commission. Under questioning, I also informed him that I did not agree with portions of the City.Attorney's opinion and that I would have to discuss this matter with the Mayor and City Commission and I will abide by their wishes. When I relinquished my compensation agreement (which was a model agreement established by the International City Management Association), at the City Commission Meeting of April 20, 1982, it was with the understanding that I would reeceive the same emoluments included in the agreement. Immediately after relinquishing my agreement (contract), I met with the Mayor and each Commissioner individually to discuss the intention of the City Commission as it related to my emoluments (benefits). The Mayor and each Commissioner agreed that it was their intention that my benefits remain the same as included in the agreement. Section 4 (a) of the subject Agreement reads in its entireety as follows: "HOWARD V. GARY'S duties require that he shall have the exclusive and unrestricted use of an automobile at all times during his employment with the City. HOWARD V. GARY shall be entitled to the same car emolument as the prior City Manager. The City shall be responsible for payment of liability, property damage, and comprehensive insurance, and for the purchase, operation, maintenance, repair, and regular replacement of said automobile or the rental cost of a leased vehicle, plus maintenance and gas, if HOWARD V. GARY decides to provide his own car." Mor i oN 84--225 . n+� Honorable Mayor and Members of the City Commission It is important to note the Agreement gives me three (3) options, two (2) of which were utilized by the previous City Manager. (1) Use City purchased vehicle, (2) Use a City leased (rental) vehicle or (3) Use my own car. Each option carries with it the following: 1. Vehicle cost (purchase price or rental cost) 2. Maintenance cost 3. Insurance 4. Gas With regard to the first option, the City purchased a vehicle. In the second and third options, the City paid the rental cost of a leased vehicle as opposed to purchasing a vehicle. This point is very important because the February 10, 1984 legal opinion confuses a car allowance, given to Department Directors and Assistant Directors with that of a purchase price or rental cost given to City Managers. Car allowance is compensation for all costs as opposed to the purchase price or rental cost which covers only the cost of the vehicle. Section 4 (c) of the Agreement provides for the rental cost of a leased vehicle (not car allowance) plus maintenance and gas. Therefore, the interpretation that rental cost is the same as a car allowance is incorrect and, therefore, the conclusions related to this interpretation are not correct. In reference to the issue which related to repairs, the February 10, 1984 legal opinion excluded repairs when I used my own car. The basis for this opinion was on the fact that "repairs" were included when the City purchased or leased a car for my use but excluded it when I used my own car. Even though this is considered an oversight, the term maintenance and repair are the same. "Maintain" means to keep in a condition of good repair or efficiency. In summary, the City Attorney stated in his February 10, 1984 legal opinion that the language related to the car benefits was confusing and capable of conflicting interpretations. Furthermore, the above analysis reveals that the definition and interpretation of terms needed further analysis. I think we all agree that the issue of interpretation and intent needs to be resolved. May I suggest a solution for the City Commission in the future. That the option given me to use my own car be rescinded and that the City provide me with a leased vehicle which would be insured, maintained, repaired and fuelled by the City which was one of the options utilized by the previous City Manager. cc: Jose Garcia -Pedrosa City Attorney 84,--225 CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM TO The Honorable Joe Carollo City Commissioner FROM Jose Garcia -Pedrosa City Attorney DATE February 109 1984 FtLE!MIA 84-3 SUBJECT Compensation of City Manager REFERENCES ENCLOSURES You have asked me to render to you a legal opinion V esponse to the following questions: 1. Is the Compensation Agreement executed by City Manager Howard V. Gary on June 17, 1981, in effect at this time? If not, when did that Agreement cease to be effective? 2. What is the legal interpretation of §4C of that Agreement insofar as it relates to the benefits that Mr. Gary is entitled to if he provides his own car, making particular reference to car repairs? 3. If Mr. Gary provides his own car and receives a monthly car allowance, is he also entitled to have the City pay for the maintenance and gas on that car? The facts that you have asked me to consider are the followings a) On June 8, 1981, the City Commission passed Resolution No. 81-514, engaging the services of Mr. Gary in accordance with the terms and conditions set forth in a Compensation Agreement attached to said Resolution and approved thereby. (A copy of said Resolution is attached to this Opinion.) b) On June 17, 19819 pursuant to the terms of said Resolution, Mr. Gary executed said Compensation Agreement, and his execution was attested by the City Clerk. (A copy of the executed Agreement is also attached to this Opinion.) c) On April 20, 1982, during the course of a City Commission meeting, Mr. Gary stated in part as follows: "I can now advise you that I will not seek a renewal or extension of my compensation agreement, and as a matter of fact, I will relinquish my existing agreement. I am satis- 84-225 fied that you will continue to pro- vide me the customary benefits and emoluments of my office, including your policy of providing three months severance pay for departing appointed officers. Thanks to the people of the City of Miami and thanks to you, the City Commission, I have all of the job security I need." (A copy of page 3 of the Clerk's transcript that includes the quoted language is also attached to this Opinion.) d) The Commission did not discuss or elucidate the meaning of the phrase "customary benefits and emoluments of my office", and no written memorialization of Mr. Gary's relinquishment of the Agreement was made. e) The City Manager that preceded Acting City Manager who, like the City preceded him, received the free use of leased and maintained. Ouestion No. 1 Mr. Gary in office was an Manager who immediately a vehicle which the City Upon a review of the above facts and of the documents referred to therein, it is my view that the subject Agreement is not in effect at this time, and that it ceased to be effective on April 20, 1982. The only troubling question relates to the fact that the Agreement contains term and termination provisions which require written notice, and such written notice was never given. However, it should be noted that the Agreement does not provide for the voluntary relinquishment by Mr. Gary, while continuing to be employed as City Manager. Based upon that fact, and based further upon established principles of waiver and estoppel, I do not consider the absence of written notice to affect or annul the voluntary relinquishment. Should that question arise, the principle of waiver would dictate that the words and conduct of the parties, spoken and done wilfully, which resulted in reliance by both parties and in a consequent change of position preclude either side from asserting that the contract remained in effect after April 20, 1982. See, e.g., Travelers Indemnity Co. v. Swanson, 662 F. 2d 1098 (Sth Cir. 1981)• Ennis v. Warm Mineral Springs, Inc., 203 So. 2d 514 Fla. 2d DCA 1967)• and 22 Fla. Sur. 2d §26, at 443-44. Furtherg even absent an estoppel, the principle of waiver supported by the subsequent retention of the employment relationship, would lead to the same result. Thus, it has been stated that where the verbal agreement of the parties amounts to a waiver of mutual stipulations in a written contract, each discharge may furnish for the other a consideration sufficient to - 2 - N4 -21Z,5 support a waiver. 28 Am. Jur. 2d, Estoppel and Waiver §159. question No. 2 Section 4C of the subject Agreement reads in its entirety as follows! "HOWARD V. GARY'S duties require that he shall have the exclusive and unrestricted use of an automobile at all times during his employment with the City. HOWARD V. GARY shall be entitled to the same car emolument as the prior City Manager. The City shall be responsible for payment of liability, property damage, and compre- hensive insurance, and for the purchase, operation, maintenance, repair, and regular replacement of said automobile or the rental cost of a leased vehicle, plus maintenance and gas, if HOWARD V. GARY decides to provide his own car." A close reading of that language reveals several problems. First, the phrase "the same car emolument as the prior City Manager" appears to contradict the more specific phrase that follows it, since that more specific phrase lists benefits ("emoluments") that apparently were not afforded to "the prior City Manager". Established principles of law dictate that under those circumstances the proper interpretation is to apply the more specific provisions rather than the more general ones. Aetna Life Ins. Co. v. White, 242 So. 2d 771 (Fla. 4th DCA 1970); Cypress Gardens Citrus Productst Inc. v. Bowen Bros Inc., 223 So. 2d 776 Fla. 2d DCA 1969). Second, the reference to the prior City Manager lends itself to some confusion, since Mr. Gary's immediate predecessor was an Acting City Manager. Yet this problem appears to be of little consequence in this instance, given the fact that said Acting Manager and the City Manager whom he succeeded apparently ` received the some benefits insofar as an automobile is concerned. i�Third, and most importantly, the key, more specific phrase listing the car benefits is most confusing, ungrammatical, and capable of conflicting interpretations. No case law can be cited in support of any interpretation, since each case will turn on the actual contractual language, but my best legal interpretation is that the benefits afforded to Mr. Gary if he provides his own car are (1) liability, property damage, and comprehensive insurance [a phrase which is in itself awkward, since "comprehensive" insurance would appear to include both liability and property -damage coverages]; (2) maintenance; and (3) gas. The basis of my exclusion of such items as repairs is that those r LA items are included in the phrase "purchase, operation, maintenance, repair, and regular replacement of said automobile or the rental cost of a leased vehicle", which phrase relates to a City -owned or City -leased vehicle. Further, the word "maintenance" (but not the word "repair") is repeated in the phrase that relates to Mr. Gary's own car, as in "plus maintenance and gas, if HOWARD V. GARY decides to provide his own car". Question No. 3 Neither the suhject Resolution nor the subject Compensation Aoreement makes reference to a car allowance, and the aforementioned reference to the prior City Manager is inapplicable, since he did not provide his own car. It is, however, my understanding that the City gives its high-ranking employees a choice between a car allowance or a City -owned car, which includes maintenance and gas. Mr. Gary would be legally entitled to receive both a car allowance for use of his own car and maintenance and gas for that car (in which case the car allowance would probably merely be deemed additional compensation) if that were the intention of the Commission, which appointed him and which fixes the terms and conditions of his employment. I can find no discussion of such intention by the Commission in the materials which I have reviewed and which are listed above. cc: Honorable Mayor and Members of the City Commission Howard V. Gary, City Manager - 4 - COMPENSATION AGREEMENT Section 1. - DUTIES The City Commission hereby agrees to employ HOWARD V. GARY as City Manager of the City of Miami, Florida, to perform the functions and duties specified in the City Charter and to perform such other legally permissible and proper duties and functions as the City Commission shall from time to time assign. Section 2. - TERM The term of this Agreement shall be for a period commenc- ing April 16, 1981 and expiring on September 30, 1982, with all subsequent Compensation Agreements to be for 2-year periods. A. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City Commission to terminate the services of HOWARD V. GARY at any time, subject only to the provisions set forth in Section 3.A. and B. hereof. B. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of HOWARD V. GARY to resign at any time from his position with the City subject only to the provisions set forth in Section 3.C. hereof. C. HOWARD V. GARY agrees to remain in the exclusive emp: of City until September 30, 1982, and neither to seek, accept nor become employed by any other employer until said termina- tion date, unless said termination date is effected as herein, after provided. The term "employed" shall not be construed to include occasional teaching, public speaking, writing, or consulting performed on HOWARD V. GARY'S time off. D. In the event written notice to the contrary is not given by either the City Commission or HOWARD V. GARY within 90 days prior to the termination date (September 30, 1982), this Agreement shall be extended on the same terms and conditions as herein provided, for an additional period 84-22 COMPENSATION AGREEMENT Section 1. - DUTIES The City Commission hereby agrees to employ HOWARD V. GARY as City Manager of the City of Miami, Florida, to perform the functions and duties specified in the City Charter and to perform such other legally permissible and proper duties and functions as the City Commission shall from time to time assign. Section 2. - TERM The term of this Agreement shall be for a period commenc- ing April 16, 1981 and expiring on September 30, 1982, with all subsequent Compensation Agreements to be for 2-year periods. A. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City Commission to terminate the services of HOWARD V. GARY at any time, subject only to the provisions set forth in Section 3.A. and B. hereof. B. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of HOWARD V. GARY to resign at any time from his position with the City subject only to the provisions set forth in Section 3.C. hereof. C. HOWARD V. GARY agrees to remain in the exclusive employ of City until September 30, 1982, and neither to seek, accept, nor become employed by any other employer until said termina- tion date, unless said termination date is effected as herein- after provided. The term "employed" shall not be construed to include occasional teaching, public speaking, writing, or consulting performed on HOWARD V. GARY'S time off. D. In the event written notice to the contrary is not given by either the City Commission or HOWARD V. GARY within 90 days prior to the termination date (September 30, 1982), this Agreement shall be extended on the same terms and conditions as herein provided, for an additional period 84-225 of two years. Said Agreement shall continue thereafter for two-year periods unless ninety (90) days written notice to the contrary is given by either the City Commission or HOWARD V. GARY prior to the time of expiration of said renewal Agreement(s). Section 3. TERMINATION AND SEVERANCE PAY A. In the event HOWARD V. GARY is terminated by the City Commission before the expiration of the aforesaid term of employment and during such time that he is willing and able to perform the duties of City Manager, then, and in that event, HOWARD V. GARY shall be paid a lump sum cash payment equal to the time remaining on his Agreement, plus 3 months aggregate salary; provided, however, that if at any time during the period of the term of the herein Agreement or any renewals thereof, the City Commission were to decide to dismiss HOWARD V. GARY as City Manger for any reasons of malfeasance or misfeasance or by reason of his being convic- ted of a felony then,'at that point and under the provisions of City Charter Section 15, he would be afforded all of the relief granted him under said Charter Section 15 and if, after all pertinent procedures have been followed, the City Commission were still to decide to terminate him for reasons of malfeasance or misfeasance or by reason of his being convicted of a felony, then the City would not under those circumstances be obligated to pay HOWARD V. GARY any money for the time remaining on the term of the herein Agreement or renewal thereof nor would the City be obligated to pay him the severance benefit of 3 months aggregate salary as set forth in Section 3.C. hereof. B. In the event the City at any time during the employ- ment term reduces the salary or other financial benefits of HOWARD V. GARY in a greater percentage than an applicable across-the-board reduction for all City employees, or in the event the City refuses, following written notice, to comply with any other provision benefiting him, then, in -2- that eSt, HOWARD V. GARY may, P at his option, be deemed to be "terminated" at the date of such reduction or such refusal to comply within the meaning and context of the herein sever- ance pay provision. C. In the event HOWARD V. GARY voluntarily resigns his position with the City before expiration of the term of this Agreement or any renewals thereof, then he shall give the City 2-months written notice in advance. Section 4. - SALARY A. The City agrees to pay HOWARD V. GARY for his ser- vices rendered pursuant hereto an annual base salary of $70,029, payable in installments at the same time as other employees of the City are paid. B.(1) In addition, the City agrees to increase said base salary and/other benefits of HOWARD V. GARY in such amounts and to such an extent as the City Commission may determine that it is desirable to do so on the basis of an annual salary review and evaluation of HOWARD V. GARY. (2) Such salary review and evaluation of HOWARD V. GARY shall be conducted in accordance with the evaluation format used by the International City Managers Association and shall take place at least 100 days prior to September 30, 1982 and thereafter, once a year, as follows: on odd -numbered ;j years at least 100 days subsequent to the adoption of the budget and on even -numbered years 100 days prior to the ter- : urination date of the Compensation Agreement. C. HOWARD V. GARY'S duties require that he shall have i the exclusive and unrestricted use of an automobile at all times during his employment with the City. HOWARD V. GARY shall be entitled to the same car emolument as the prior City Manager. The City shall be responsible for payment of liability, property damage, and comprehensive insurance, and for the purchase, operation, maintenance, repair, and regular replacement of said automobile or the rental cost of a leased vehicle, plus maintenance and gas, if HOWARD V. GARY decides to provide his own car. -3- 84-225 Section 5. - DUES AND SUBSCRIPTIONS The City agrees to budget and pay for the professional dues and suscriptions of HOWARD V. GARY required for his continuation and full participation in national, regional, state and local associations and organizations necessary and desirable for his continued professional participation, growth, and advancement, and for the good of the City. Section 6. PROFESSIONAL DEVELOPMENT A. The City hereby agrees to budget and pay for the travel and subsistence expenses of HOWARD V. GARY for pro- fessional and official travel, meetings, and occasions adequate to continue his professional development and to adequately pursue necessary official and other functions for the City, including, but not limited to, the Annual Conference of the International City Management Association, The State League of Municipalities, and such other national, regional, state and local governmental groups and committees on which he serves as a member. B. The City also agrees to budget and pay for the travel and subsistence expenses of HOWARD V. GARY for short courses, institutes and seminars that are necessary for his professional development and for the good of the CITY. Section 7. GENERAL EXPENSES The City recognizes that certain expenses of a nonpersonal and generally job -affiliated nature are incurred by HOWARD V. GARY and hereby agrees to reimburse or to pay said general expenses, up to an amount not to exceed $2,500 per year. Section S. - CIVIC CLUB MEMBERSHIP The City recognizes the desirability of representation in and before local civic and other organizations, and HOWARD V. -k- �4-225 ■ i GARY is hereby authorized to become a member of one local professional executive club for which the City shall pay all expenses. Section 9. VACATION. SICK. AND MILITARY LEAVE HOWARD V. GARY is hereby entitled to a vacation of 30- working days per year. In the event he attends professional seminars or special conferences of a professional nature during his vacation, he will be reimbursed for the cost of such seminar or conference and for his travel, meal and lodging expenses. In addition, he is hereby entitled to 12- days annual sick leave, but will not receive time off for the personal holiday leave afforded all other City employees. Provisions governing accrual and payment of the herein benefits shall be the same as accorded City Department Heads. Section 10. DISABILITY, HEALTH, AND LIFE INSURANCE A. The City agrees to put into force and to make required premiub payments for HOWARD V. GARY on insurance policies for life, accident, sickness, disability income benefits, major medical and dependent's coverage group insurance covering HOWARD V. GARY and his dependents. B. The City agrees to purchase and to pay the required premiums on whole life insurance policies equal in an amount to two (2) times the annual gross salary of HOWARD V. GARY with the beneficiary named by him to receive one-half of any benefits paid, and with the City to receive the other one-half. C. The City agrees to provide hospitalization, surgical, and comprehensive medical insurance for HOWARD V. GARY and his dependents and to pay the premiums thereon equal to that which is provided all other City employees or, in the event such plan ceases to exist, to provide said insurance for HOWARD V. GARY and his dependents. -S- 84-225 • • D. The City shall provide travel insurance for HOWARD V. GARY while he is traveling on City business, with HOWARD V. GARY to name the beneficiary thereof. Section 11. NORMAL RETIREMENT SYSTEM HOWARD V. GARY shall be entitled to the same pension emoluments as the previous City Manager. The City shall deposit pension contributions to a trust fund established by HOWARD V. GARY on a bi-weekly basis. HOWARD V. GARY can use these funds to join any pension plan he desires. HOWARD V. GARY may, upon severance of employment, designate a public trust fund to which all monies in his Pension Trust Fund, plus accrued interest thereon, shall be transferred within 20 days from the date of such designation. Section 12. - GENERAL PROVISIONS A. The text herein shall constitute the entire Agreement between the parties. B. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of HOWARD V. GARY. C. If any provision, or any portion thereof, contained in this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected, and shall remain in full force and effect. APPROVED, ACCEPTED AND AGREED TO THIS 1 74 DAY OF 1981 2 OWARD V. GARY Q 7ktcWnn. CLERK - 6 - 84-225 Mr. Gary; (con't) faith in the process of evaluation that you have agreed to, and most importantly, because I wish to achieve peace in the house. I can now advise you that I will not seek a renewal or extension of fay compensation agreement, and as a wetter of fact, I will relinquish my existing agreement. I am satisfied that you will continue to provide me the customary benefits and emoluments of my office, including your policy of providing three months severance pay for departing appointed officers. Thanks to the people of the City of Miami and thanks to you, the City Commission, I have all of the job security I need. I am prepared to proceed with the evaluation. Mayor Terre: For the purposes of asking a question. Mr. Smith: Mr. Mayor, my name is H. T. Smith. In view of the fact that most of the people here had taken off on April Fool's Day for this evaluation; in view of the fact that we are here again today and we heard most of your views already, I am inquiring... Mayor Terre: No, you haven't. Mr. Smith: Excuse me, Mr. Mayor, you said you would't cause any interruption and I'de appreciate it if you would enforce it with yourself. Thank you, sir. In view of the fact that many people here have taken off from their jobs and the public has a right to be heard, the only question is the time. My inquiry is, could the Mayor, or any Commissioner here, willing to make a motion that the public be heard first. There are those here who have other things that they have to do - children out of school; they have jobs to go back to; and I want to know if there is any Commissioner who is concerned enough about the public input to hear from the public prior to the evaluation, by so moving. Mayor Terre: Thank you for your statement, Mr. Smith; now we can proceed. Mr. Dawkins: I would be remiss were I not to take Brother Smith up on his offer. Knowing that whatever is said here will not in any way alter my opin- ion or in any way change my evaluation, I'd make a motion that we hear from those who wish to speak. Mayor Terre: There is a motion, and technically I could not recognize the motion, but I am not going to do that; I am going to recognize the motion and again, I am going to say that the Chair has ruled that we will hear from people after the members of the Commission have had the opportunity to proceed and do their job. Now, if there is a second to that motion, we will put it to a vote. Mr. Perez: I second that motion, Mayor. I think that is a matter of courtesy. I think that as a matter of courtesy, I would like to have the opportunity to hear the opinion of the people, but I think you have to limit the time also, because I think that you have to establish the rules, because I know that these people have to to to work and also maybe have some commiements,but I voulo like to establish a time; I would like to make some amendment to the motion of Com- missioner Dawkins in order to have - what do you think about an hour; do you think that an hour would be fair? Mr. Dawkins: Would you say 3 minutes per person? S minutes? Mr. Perez: Yes, but with a limit of an hour. Mr. Dawkins: I will accept that amendment. Mr. Perez: Okay, I will make that motion. Mayor Ferro: There is a motion and a second. Is there further discussion? Mr. Plummer: Mr. Mayor. Under discussion. This isn't going to be popular, but I on going to vote against the motion and I want to tell you why. I think that it is unfair to Mr. Gary for any one of you to speak before the evaluation Is done. I have not spoken, because I want Mr. Gary to present his case. That Is what we are here for. Then, once he has presented his case, and the Mayor has said he will give you the right to speak, that's when you and I will have the opportunity to speak. I think it is unfair to Mr. Gary, Mr. Smith; I am sorry that I disagree with you air, and I am sure we will in the future, and I hope there are areas that we will agree on, sir, but I think it is blatantly APR 2 01982 ld 84-225.