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Home My WebLink AboutR-83-1053J-83-1049 A 001, RESOLUTION NO. '}i —10t- 3 A RESOLUTION AUTHORIZING Tilly; U i'I'Y MANAGER TO Ex - PENT) $24 , 778 . 94 foil Tl!F. PUIfPOSI; OF PROV I DI NG F['NDS TO THE SOUTH FLORIDA FIMPLOYMI�;NT :AND TRAIN- ING CONSORTIUM FOR THE PAY11EINT OF BACK WAGES TO ARMANDO MACHADO IN COMIPIJANC'F. WITH THE ORDER OF I'HL U.S. SECRETARY OF LABOR. WIlEIIEAS, the City of Miami a mmmher of th(, South Florida Em- 1)1oyment and Ti-,iininr; Consort i u m (SFEITC); and WHEREAS , the members of i he SFETC ar(, i nd f v i dua 1 I y and sc�vera 1 1 y l iab.lo for acts of the SFETC entity: and WHEREAS, the U.S. Secretary of Labor has issued a Decision and Order in Machado v. SFETC (80-CE'I A-494) awarding back wages to Armando Machado; and WHEREAS, the SFETC Board has adopted Resolution 08-26-83-14 to comply witli the aforementioned U.S. Secretary of Labor'.,-; Order; and WHEREAS, SFETC staff has calculated the liability for back wages awarded to Armando Machado to be $'�S,439.19; and WHEREAS, the members of the SFETC have agreed to distribute the aforementioned liability based on each member's percentage of the fund- ing allocations to SFETC members for the period FY 1978-1983; and WHEREAS, the City of Miami's share of the aforementioned liability is $24,778.94 (31.595 of $78,439.19); NOW, THEREFORE, BE IT RESOLVED BY THE COMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to expend, from Special Programs and Accounts/Contingent Account, twenty-four thousand seven hundred seventy-eight and 94/100 dollars ($24,778.94) for the purpose of providing funds to the South Florida Employment and Training Consortium for the payment of hack wages to Armando Machado in compliance with the Order of the U.S. Secretary of Labor. PASSED AND ADOPTED this ATTEST: 16th day of November Maurice A. Ferre MAURICE A. FERRE M A Y 0 R . 1983. l . CITY COMMISSION ALP G. ONGIE, CITY CLEW Tfi�ET1Td^ OF IMV 16 `9:1963(n�I� �RF��k,,, t;,.83-1V53 k,cans _ U U PREPARED AND APPROVED BY: ROBERT F. CLARY DEPUTY CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: SE R. GARCIA-PEDROSA ITY ATTORNEY 83--1053 19 A CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM -O Howard V. Gary City Manager DATE' Octcber 26, 1983 BILE SUBJECT Proposed Resolution to authorize payment to SFETC for payment of back wage award. CROM Robert D. Krause REFERENCES Director Department of E iLnan Resources ENCLOSURES. Five ( 5 ) It is recommended that the City Commission adopt a Resolution l authorizing the City Manager to expend $24,778.94 for the pur- pose of providing funds to the South Florida Employment and Training Consortium (SFETC) for the payment of back wages to Armando Machado in compliance with the Order of the Secretary of Labor, per the attached Res- olution. On July 29, 1983 the U.S. Secretary of Labor issued a Decision and Order in the case of Armando Machado v. SFETC (80-CETA-494). The Consortium was ordered to reinstate Mr. Machado and pay him back wages. The reinstatement has already taken place. The payment of back wages is pending. The Secretary's Order came as a result of a finding that the Con- sortium improperly discharged Mr. Machado in January 1978. This case has been in litigation for over two years. On August 26, 1983 the SFETC Board adopted Resolution 08-26-83-14 authorizing the Consortium Director -to comply with the payment of back wages. Consortium staff has calculated the amount due Mr. .Machado to be $78,439.19. The Consortium members have agreed to distribute this liability based on each member's percentage of the funding allocations to SFETC members for the period 1978-1983. During this period the SFETC members received a total of $190,967,034 in CETA funds, and the City's share of that amount was $60,326,885 (31.59%). The City of Miami's share of the Consortium's liability is, therefore, $24,778.94 (31.590C. of $78,439.19). Under Florida law the five members of the Consortium are equally and severally liable for acts of the Consortium entity. As a result, it is in the best interest of the City and the other members that this matter be settled through a joint agreement and as expeditiously as possible. 83-1053 Olt or- Mr. Howard V. Gary Page 2 Enclosed with this memorandum and the proposed Resolution are the Secretary's Decision and Order, SFETC Resolution 08-26-83-14, a Memorandum/Invoice from the Consortium and a legal opinion from the Consortium's General Counsel concernina the liability of the Consortium members. 83-1053 SOUTH FLORIDA EMPLOYMENT AND TRAINING CONSORTIUM 225 N.E. 34th Street, 2nd Floor, Miami, Florida 33137 • (305) 579-3519 M E M O R A N D U M SFETC e Jose Alfa Exec ive irector August 3, 1983 AFUMANDO MACHADO CASE Attached please find a copy of the U.S. Secretary of Labor's Decision and Order denying the SFETC's exceptions to the decision of the Administrative Law Judges ordering the payment of full back wages to Mr. Machado in addition to reinstating him to the position of Adminis- trative Officer II, step 10. SFETC Special Counsel, Jesse McCrary, has requested copies of the cases cited by the Secretary in his order. As soon as Mr. McCrary has had the opportunity to review those cases, he will advise as to what further action may be taken. JA:aU:jsd cc: SFETC Liaisons Attachment mwetit5 M.R. Stierheim, Dade County • Raul L. Martinez, City of Hialeah • Howard Gary, City of Miami • Rob W. Parkins, City of Miami Beach a Kermit Lewin, Munroe County EXECUTIVE nincTQR Joseph Alfano 83--1053 i 00 U.S DEPARTMENT OF LABOR SECRETARY OF LABOR WASHINGTON. D C Armando Machado Complainant v. South Florida Employment and Training Consortium Respondent ow 80-CETA-194 In, ' -7. T:'ias rei�3F_ _ :,j '. = 1 f _he rndm_4 n1s1: = /e maw Ca-:aion and Order on Remand in this case. I had remanded the case to him on February 22, 1932 for calculation of back pal due to the complainant, Armando ;Machado, after the case had been remanded to me by the former Fifth Circuit. SFETC challenge- the ALJ's holding that Machado did not release his rignt to seek back pay for the entire period since his discharge by SFETC by accepting a check for over $18,000 and signing a statement that acceptance of that payment would close the case. SFETC also argues that the ALJ's order should be vacated because the llth Circuit has held that back pay may not be awarded for a procedural violation alone under CETA. County of Monroe v. U.S. Department of Labor, 690 F.2d 1359 (1982). SFETC's exceptions are DENIED. 83-1053 ilt 9 -2- SFETC argues tnat the ALJ's holding that Machado did not waive his right to seek additional back pay was based on an error of fact. Th: ALJ held that the release signed by Machado had no Affect because SFETC did not contact Machado's lawyer prior to obtaining Machado's signature, but SFETC asserts the record shows Machado's lawyer was aware of his signing the re.A.eaa(:! anj ac:.`pci, check. in fact, the record indicates accept the cneCK because it stated tnat acceptance would close t` a case. 4h?Cl ne d_d sign it, !le testi-fi?d he dij so unde' &:JtcSt %-JeC IAZe C..io ;Uic was pellullly Un *tier-nec ne iilould be deemed a CETA earticipant or a regular employee. The _,-,'Iuage of the releasa itself indicated that It - -ayma-t as required by the ALJ's original order in this case. That order, of course, has been modified in one crucial respect that affects back pay by the remands of the Court of Appeals and my Order of February 22, 1983 - Machado was a regular employee and is entitled to back pay for the entire period from his discharge to his reinstatement. As the history of this case demonstrates, Machado never relinquished his claim that he was a regular employee which would entitle him to more than the $18,000 in back pay originally ordered by the ALJ and covered by the release signed on November 5, 1981. That claim, of course, was pending before me when the release was signed, 83-1053 -3- and ultimately was upheld. I hold tnat by accepting a check and signing a statement on November 5, 1981, Machado did not release his right to back pay for the entire period he ,rc:ld have been employed as a regular employee. (The ALJ quire properly deducted the amount re^e,-ved cn Novemcer 5, 1991 _`:! t- nay -Ille ender F, i e ..ra -r --n .erwnna the ruling of the Eleventh Circ,.:it in procedural violation. Hcwever, Count? or Aor.:oe is inap:oaitz here. It dealt with t1te situation i i wh_--n procedurally defective bu= _::e inder.l; -ng :.asis `z.- t a was valid; that is, as T_ explained in Jercme Nhalev v. C`.ic:go Police Department, 79-CETA-121 (Nov. 30, 1982) no bacK pay is due where the procedural defect was harmless error. Here, Machado has been ordered to be and has been reinstated. SFETC had no grounds to discharge him, and, if proper procedures had been followed, his status when he was transferred to work for Sabar, Inc. would have been made clear. THEREFORE, the Decision and Order on Remand of the ALJ is adopted in all respects. 3e recary Lab r Dated: July 29, 1912 Washington, D.C. S3-1053 CERTIF'-imp -F SERVICE Case Name: Machado v. South Florida Empioyment & Training Consortia Case Nc.: 80-CETA-494 Document: Decision and Order Copies of the above-reteren�ped document were mailed to the i• _ _ ._. �. �l S a :.. is C .: .. �: _ :. � ,, :1 - - , - Associate Solicitor for .:mpicyment and ':r3:.;.ng U.S. Lepartil2nt of 200 Constitution Avenue, N.W. Room y-2101 Washington, D.C. 20201 ATTN: Neilda Lee Jerold Reichler, Esq. 1400 Northeast Miami Gardens Drive Suite 103 North Miami Beac.i, Florida 33179 Regional Administrator for Employment and Training U.S. Department of Labor, ETA 1371 Peacntree Street, N.E. Atlanta, Georgia 30367 Office of Administrative Law Judges U.S. Department of Labor 1111 20th Street, N.W. Washington, D.C. 20036 Jesse J. McCrary, Jr. 3050 Biscayne Boulevard Suite 300 Miami, Florida 33137 83-1053 SOUTH FIORIDA EMROVMENT AND TRAINING CONSORTIUM Members of the South Florida Employment and Training Consortium Joseph Alfano/ Executive Di ector RECOMMENDATION 14. August 26, 1983 RESOLUTION RATIFYING THE ACTION TAKEN ON AUGUST 25, 1983 ON THE ARMANDO MACHADO VS. SFETC CASE AND AUTHORIZING THE EXECUTIVE DIRECTOR TO NEGOTIATE A SETTLEMENT It is recommended that the Consortium Board formally ratify the action taken on August 25, 1983 on the Armando Machado vs. SFETC case and authorize the Executive Director to negotiate a settlement in accordance with the Order issued by U.S. Secretary of Labor Raymond Donovan. BACKGROUND On July 29, 1983, U.S. Secretary of Labor Donovan issued a Decision and Order to award back wages to Armando Machado and to reinstate him to the position of Admin- istrative Officer II, Step 10. On August 24, 1983 Consortium Liaison Members met with Mr. Jesse McCrary, SFETC Special Counsel, and the Executive Director to review the order of reference and determine a course of action. After a review of the issues was made by Mr. McCrary and some discussion, it was agreed that Liaison Members would consult with the permanent Members and advise the Executive Director by no later than noon, August 25, 1983, so that the Executive Director could notify Mr. McCrary as to whether an appeal would be pursued or the case would be settled as mandated by Secretary Donovan. The deadline for the filing of the appeal is Monday, August 29, 1983. On August 25, 1983 Consortium Liaisons conveyed the decision of each Consortium Member to the Executive Director through telephone conferences. As a result of these conferences, a majority vote was recorded to settle the matter in accordance with Secretary Donovan's Order, and to determine each Member jurisdiction's lia- bility based on the percentage of funds received. It is now recommended that this action be ratified by the Consortium Board, and that the Executive Director be authorized to negotiate the amount of the settlement with Mr. Machado's attorney. JA: jsd 33-1053 RESOLUTION NUMBER 08-26-83-14 RESOLUTION AUTHORIZING THE EXECUTIVE DIRECTOR TO SETTLE THE ARMANDO MACHADO VS. SFETC CASE WHEREAS, the South Florida Employment and Training Consortium has been duly authorized to carry -out the legislative and executive provision■ of a Comprehensive Employment and Training Act program for Dade and Monroe Counties, Florida, in accordance with the Consortium Agreement of November 22, 1978; and WHEREAS, the Consortium desires to accomplish the purposes out- lined in the memorandum from the Executive Director, a copy of which is attached to this resolution, for the reasons delineated therein: NOW, THXREFORE, BE IT RESOLVED BY THE SOUTH FLORIDA EMPLOYMENT AND TRAINING CONSORTIUM that the Consortium Board approve the resolution authorizing the Executive Director to settle the Armando Machado vs. SFETC case. THE foregoing resolution was offered by Robert Krauss , the representative of City of Nidmi , who moved its adoption. The motion was seconded by Fred Marinelli the representative of City of Hi3jeah and upon being put to a vote was as follows: City of Miami YES - City of Miami Beach ABSENT Dade County YES Monroe County ABSENT City of Hialesh YES THE Chair, thereupon, declared the resolution duly passed and adopted Wa 26th day of August , 1983. SOUTH FLOR I DA EMPLOYMENT AND TRAINING CONSORTIUM BY: oseph A fano Executive Director 83-1053 SOUTH FLORIDA EMPLOYMENT AND TRAINING CONSORTIUM 225 N.E. 34th Street, 2nd Floor, Miami, Florida 33137 • (305) 579-3519 M E M O R A N D U M TO: Members of the South Florida Employment and TCAlfan onsortium FROM: Josep Execui ector DATE: September 27, 1983 SUBJECT: INVOICE FOR PAYMENT OF SETTLEMENT IN THE ARMANDO MACHADO VS. SFETC CASE Attached for your review is the distribution of liability payable by each jurisdiction as final settlement in the Armando Machado vs. SFETC case (80-CETA-494). Please forward your respective payments to the SFETC so that a check can be issued and offered to Mr. Machado as soon as possible. As previously discussed, the distribution of liability is based on the average percentage of funding allocated to each jurisdiction from Fiscal Year 1978 through 1983. Please be advised that should a settlement not be finalized with Mr. Machado, the matter will be referred to the Regional Administrator of the U.S. Department of Labor. If this occurs, the SFETC will immedi- ately request that accrual of interest be stopped. It should be noted, however, that additional interest may be accrued should the Regional Administrator rule against the SFETC. This may necessitate additional disbursement of funds from each jurisdictions at a later date. JA:BU:jad Attachment cc: SFETC Liaisons mfmms M.R. Stierheim, Dade County • Raul L. Martinez, City of Hialeah • Howard Gary, City of Miami • Rob W. Parkins, City of Miami Beach • Kermit Lewin, Monroe County EXErUTIVE DIRECTOR )oseph Alfano 83-10S3 00 A FUNDING ALLOCATIONS TO CONSORTIUM MEMBERS DISTRIBUTION OF A FY 178 - 183 $78,439.19 LIABILITY (AVERAGE PERCENTAGES) Dade County 52.97. $ 41.549.24 City of Miami 31.59% $ 24,778.94 City of Hialeah 7.27% $ 5,702.53 City of Miami Beach 5.40% $ 4,235.72 Monroe County 2.77% $ 2,172.76 TOTAL 100.00% $ 78,439.19 83-1053 1 Gn W f" a 0 V W SFETC FUNDING ALLOCATIONS TO CONSORTIUM MEMBERS 1978 1979 1980 1981 1982 1983 TOTAL 24,464,324 50.76 26.801.610 54.44 21,999,445 54.89 19.367.581 52.56 4.044,315 50.33 4,472,295 52.15 101.149.570 52.97 Dade County S I City of Miami $ 1 14.628,390 30.77 15.050.041 30.57 12.140.969 30.29 12,992.062 35.26 2.653.761 33.02 2.661.662 31.04 60.326.885 31.59 City of Hialeah $ Z 4.3579202 9.04 2.651.198 5.38 2,510.090 6.26 2,406.065 6.53 966.000 12.02 964,179 11.48 13,874.734 7.27 City of Miami Beach $ 3.056,949 6.34 3.390.077 6.89 2.005.175 5.00 1.153,526 3.13 314.750 3.92 400.554 4.67 10.321.83t 5.40 Monroe County $ 2 1.486.443 3.09 1.340,218 2.72 1.425.600 3.56 927.753 2.52 57,000 .71 57.000 .66 5.294.014 2.77 TOTAL $ S 48.193.308 100.00* 49.233.944 100.00 40,081.279 100.00 36.846.987 100.00 1 8.035,826 100.00 8,575.690 100.00 190.967.034 100.00 * These amounts do not include funding allocations made under the Impact Aid Crant. N AW "O"LWT 0. ROWM[W Ir RECEIVED Jute .2 '%Ki"'t OCT 2 5 lqQ ,� -_ S. F. E. T. G. ADMIN. sERV. UNIT October 20, 1983 Joseph Alfano, SFETC Executive Director 225 Northeast 34 Street Miami, Florida 331347 Re: Legal Opinion: Members liability for Judgments against Consortium Dear Mr. Alfano: 4790 TAMIAMI TRA1i 1• W. ••- STREET-- COWAL.A,JS,ZLOWI" 33134 TLLLrMOM[ face$ d640.1667 Member jurisdiction liability for judgments against SFETC is both individual and severable. A judgment holder may proceed to collect his judgment from any single member jurisdiction, all the jurisdictions or any com- bination of jurisdictions. From a practical stand point, it is probable that a judgment would be collected from one member jurisdiction. The member jurisdiction which pays the judgment or the group of member jurisdictions that pay can then require the other member jurisdictions to reimburse their share of the judgment to the member jurisdiction or jurisdictions who paid the judgment. An action for "contribution" would require the court to apportion the judgment between the member jurisdiction on a case by case basis unless their is an agreement between the jurisdic- tions which apportions each jurisdictions liability in such cases. Respectfully submitted, ROBERT D. RORNER RDR:dls 83-1053 A Robert F. Clark Deputy City Attorney Robert D. Krause _ Director Department of Human Resources October 26, 1983 Proposed Resolution to Authorize _ Payment to SPETC. Six (6) Enclosed please find a proposed Resolution to authorize the City Manager to expend $24,778.94 for the purpose of providing funds for the South Florida Employment. and Training Consortium to pay a back w—te award. Additional documentation is attached also. If you have any questions please call Frank Rodriguez at 6627. RDK/FR/orr