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HomeMy WebLinkAboutCC 2011-09-09 MinutesCity of Miami City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Di • -sash. 1° r • IN O9P I9 1i: Meeting Minutes Friday, September 9, 2011 9:00 AM SPECIAL MEETING City Hall Commission Chambers City Commission Tomas Regalado, Mayor Wifredo (Willy) Gort, Chairman Frank Carollo, Vice -Chairman Marc David Sarnoff, Commissioner District Two Francis Suarez, Commissioner District Four Michelle Spence -Jones, Commissioner District Five Johnny Martinez, City Manager Julie O. Bru, City Attorney Priscilla A. Thompson, City Clerk City Commission Meeting Minutes September 9, 2011 9:00 A.M. INVOCATION AND PLEDGE OF ALLEGIANCE ORDER OF THE DAY Present: Chairman Gort, Commissioner Sarnoff, Vice Chairman Carollo, Commissioner Suarez and Commissioner Spence -Jones On the 9th day of September 2011, the City Commission of the City ofMiami, Florida, met at its regular meeting place in City Hall, 3500 Pan American Drive, Miami, Florida, in special session. The meeting was called to order by Chair Gort at 9:17 a.m., recessed at 12: 35 p.m., reconvened at 1: 02 p.m., recessed at 1: 50 p.m., reconvened at 4: 24 p.m., recessed at 5: 07 p.m., reconvened at 6: 29 p.m., recessed at 8: 07 p.m., reconvened at 8: 36 p.m., recessed at 11: 04 p.m., reconvened at 11:38 p.m., recessed the meeting at 2: 01 a.m. on Saturday, September 10, 2011, to be reconvened on Monday, September 12, 2011, at 9:00 a.m., reconvened the meeting on Monday, September 12, 2011, at 9:24 a.m., recessed at 11: 06 a.m., reconvened at 11:45 a.m., and adjourned at 1:46p.m. Chair Gort: Before we start the -- Commissioner Suarez, will you lead us in prayer, and Commissioner Sarnoff, the pledge of allegiance. Commissioner Suarez: Thank you, Mr. Chairman. Invocation and pledge of allegiance delivered. [Later..] Chair Gort: I'm sorry. My understanding is to continue, but we can do it. Go right ahead. It's yours. I'm going to start with prayer. Commissioner Spence -Jones: I'm going to ask Madam Clerk to open us with a quick prayer. Do you mind? Okay. Invocation and pledge of allegiance delivered. Chair Gort: Under Section 26, I have convened this special meeting of the City ofMiami Commission to hold a full hearing on the facts certified by the City Manager as cause of suspension of the Chief of Police, Miguel Exposito. At this time, on the dais with me is the -- Vice Chairman Frank Carollo, Commissioner Michelle Spence -Jones -- welcome back -- Commissioner Marc Sarnoff, Commissioner Francis Suarez, and myself W fredo Gort, the chairperson. On the dais also is Johnny Martinez, City Manager; Julie Bru, City Attorney; and Priscilla Thompson, the City Clerk. At this time, Madam Attorney, will you explain the process? Julie O. Bru (City Attorney): Good morning, Mr. Chair. Welcome back, Commissioner Spence -Jones. Members of the Commission, Madam City Clerk, Mr. Manager, members of the public, we're here today on what is characterized as a quasi-judicial proceeding. This is a proceeding that's being held under Section 26 of the Charter. Manager has suspended the chief of Police. He has stated in the suspension certain facts which he believes are grounds for the suspension. He is seeking to have the chief terminated. Under the Charter, this Commission must, within five days of having received that -- the factual basis for the suspension, convene this hearing and is required to render a judgment either affirming the suspension, thereby removing the chief immediately, or find that there wasn't sufficient facts to warrant the suspension and therefore reinstating the chief immediately. This is quasi judicial, as I said. It means that the Commissioners are to act in a judge -like manner and demeanor. You are to base your conclusion on the evidence presented. You will not have to adhere to the strict rules of evidence that a judicial proceeding adheres to; therefore, you can be flexible in what evidence you want to admit, what testimony you want to consider. You can -- Mr. Chair, as the presiding member of this Commission, you can control the meeting and control the evidence and the testimony in City ofMiami Page 2 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 SP.1 11-00834 (SP.1) 11-00834a 11-00834a terms of you know, the length and so forth and so on. I suggest to you that you hear first from the Manager. He is seeking to have this employment action, so the Manager has the burden of proof. He should present his evidence first and then you should allow the Chief to present his defense. And after the conclusion of the testimony and after you review the evidence that may be introduced, you should deliberate and render judgment. I -- andl also suggest that the City Clerk swear any of the witnesses that will be testifying. Chair Gort: Thank you. DISCUSSION ITEM HEARING RELATED TO CHARGES ON THE SUSPENSION OF THE POLICE CHIEF MIGUEL EXPOSITO. 11-00834 Memo.pdf 11-00834-Submittal-Law Dept. -Chapter 11.pdf 11-00834-Submittal-Law Dept. -Sec. 40-61 and Sec. 40-123 of City Code.pdf 11-00834-Submittal-Law Dept. -Various Sections of the City Code and Charter.pdf 11-00834-Submittal-Presentation By Ruben Chavez Pertaining To Be Dept.'s Budget.pdf 11-00834-Submittal-Ruben Chavez.pdf 11-00834-Submittal-Ruben Chavez-Photo.pdf 11-00834-Submittal-Commissioner Carollo-Email.pdf 11-00834-Submittal-A. Milian.pdf DISCUSSED RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION ENTERING A JUDGMENT RESCINDING THE SUSPENSION OF CHIEF OF POLICE MIGUEL EXPOSITO AND REINSTATING MIGUEL EXPOSITO "EO INSTANTE" ( IMMEDIATELY), TO HIS POSITION AS CHIEF OF POLICE. Motion by Commissioner Sarnoff, seconded by Vice Chairman Carollo, that this matter be ADOPTED FAILED by the following vote. Votes: Ayes: 2 - Commissioner(s) Sarnoff and Carollo Noes: 3 - Commissioner(s) Gort, Suarez and Spence -Jones R-11-0336 RESOLUTION A RESOLUTION OF THE MIAMI CITY COMMISSION ENTERING A JUDGMENT AFFIRMING THE SUSPENSION OF CHIEF OF POLICE MIGUEL EXPOSITO AND REMOVING CHIEF OF POLICE MIGUEL EXPOSITO "EO INSTANTE" ( IMMEDIATELY). Motion by Commissioner Suarez, seconded by Commissioner Spence -Jones, that this matter be ADOPTED PASSED by the following vote. Votes: Ayes: 3 - Commissioner(s) Gort, Suarez and Spence -Jones Noes: 2 - Commissioner(s) Sarnoff and Carollo City of Miami Page 3 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 R-11-0336 Commissioner Spence -Jones: Mr. Chairman. Chair Gort: Yes, ma'am. Commissioner Spence -Jones: Before we officially begin the hearing, I'd like to at least make a statement please, if possible. Chair Gort: Yes. Commissioner Spence -Jones: So I just want to make sure is -- has it officially started yet or I guess after they're sworn in? Julie O. Bru (City Attorney): No. The proceedings have commenced. Commissioner Spence -Jones: Okay, so they have commenced. Okay, I just wanted to make sure. So I just wanted to kind of -- First of all, I want to thank everyone for coming out yesterday and supporting me and my family. We truly appreciate it, and we look forward to -- I look forward to really working with each and every one of you. Thank you for being a blessing yesterday. It was great to see you guys there. I wanted to at least mention that. I think it's really important before we start this hearing for me to kind of express my concerns regarding the overall perception that's out there. I think it's important for it to be cleared up, especially for my constituents that are actually looking at this issue and not really understanding, you know, what this is all about. I want to make sure that it's clear that this is about -- the notice of suspension is truly about the issues that have been brought up around the failure to obey and not necessarily about the shootings. And over the last week -- and I've only been on the job for a week, guys -- like really the last two years not even being connected, not even watching a City Commission meeting, this has been a lot to kind of endure and take in. And my very first meeting that I had with Mr. Manager regarding this issue, I was very concerned about addressing this issue from the very beginning, you know. I felt that, you know, just getting back here not only -- not being here even three days at that point 'cause that's when we had the discussion, that l felt that we needed to kind of focus our energies on getting through the next 30 days of the budget and making sure that that was the priority, and then focusing back on this overall issue. Again, the first meeting had with him, he communicated, Commissioner, this is something that, you know, I'm moving ahead on, andl respected that. The morning of the notice of the suspension, Johnny can tell you 'cause I called him at 10: 30 the night before, he reached back out to me the morning of andl said, Johnny, I'm saying to you once again, this is a very sensitive issue for my community. It puts me in a very uncomfortable situation because I haven't had an opportunity to really even communicate to my community what the issues are. I still have people asking me about shootings even yesterday during my, you know, swearing in and this is not what this is about, you know. And l just think that -- andl'm -- I can't -- since I wasn't able to get -- make it clear with my Manager, I just at least wanted my -- the colleagues that I sit on the dais with to really understand where I'm coming from. This -- I literally have been out of this for the last two years, okay. Never -- you never saw me in City Hall. I never came down here and stood at a hearing, never got involved 'cause I felt that whoever was in that seat was representing the residents, and I didn't want to disrespect what he was doing or what any of you guys were doing. Andl didn't want to create even more confusion. And to come back -- andl'm thankful to be back -- and sit down with my Manager and have a discussion with him -- he was the first person I met with, mind you, and communicate this, like I think this is really a very important issue that should not be rushed, you know. Can you give me answers on the $62 million deficit, and that wasn't the priority in the conversation, and that was alarming to me. And, Johnny, I'm telling the truth on that, correct? Okay. So I'm just -- andl don't know what the issues are. I don't -- I've gotten the information after the suspension. I've talked to my City Attorney to make sure I'm clear about what these things -- I just want to do things right. And no matter what the situation is, I don't City of Miami Page 4 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 want my community, the people that elected me, to be confused about what I'm voting on. I just don't. And honestly, at this point, they're confused. So, you know, I don't know the best way, Mr. Chair, to handle this because I do understand that this is an issue. I'm sure the Chief wants to get past it. I'm sure everybody wants to get past it, but I'm not going to rush to judgment on anything. It's just not the right thing to do. So I've asked my City Attorney the best way to handle this. I wanted to make sure that the hearing was officially moving, and it has, to figure out -- and ask my colleagues since I can't get it from my City Manager, you know, personally I feel like at this point that for me, I'm not -- I don't feel that I'm prepared to address this issue today, because I really do believe my community's actually confused right now. So I don't know what the next move was. My City Attorney told me that I cannot defer it 'cause I understand this is a hearing, correct? Ms. Bru: Commissioner, perhaps you're probably the best suited member of the Commission to hear this case because you're coming completely with a tabula rasa. You're not coming in with any kind of ancillary issues that may have gone on over the last 18 months. But what I can tell you, though, is that, you know, you sit as a judge, and you come here with no predisposed idea or notion of anything other than the charges that have been specified in the suspension letter. And it's up to the Manager to present sufficient evidence to convince you that the suspension is well grounded and the Chief should be terminated. Commissioner Spence -Jones: Right. Ms. Bru: So you can only base your judgment on what you hear here today by the way of sworn testimony and documentary evidence, if any, and not anything else that could be explained to you off the record. That's the bestl can say. Commissioner Spence -Jones: Right. And l just -- and I'm just -- again, andl understand that that's her position, andl respect my City Attorney's position, so I'm turning it to my colleagues because this is the only place that I can get it from at this point. I just -- I want you to understand what I've had to deal with for the last two years. To be thrown into this situation -- and that's fine -- unexpected but ready to roll, I just really feel as though -- one, as I stated from day one, it wasn't like I came here saying to the City Manager I wasn't open to hear the discussions on it 'cause I was. I just felt that we needed -- before he even issued the suspension, twice -- and for whatever reason, it was communicated the train is already on the track. Andl just felt that I needed to kind of communicate that. And at this point, you know, the only way that I'm being told that I can address this issue right now is through a motion to continue it because -- until after October -- It was communicated to me by the City Attorney at least what, three weeks, you said, Julie? Ms. Bru: What I have stated, Commissioner, is -- first of all, the Char -- in this particular situation that envisions a two-step process in removing the Chief the Charter is very clear, and it speaks as to a very compelling time frame. The Charter says you shall within five days proceed to hear the charges and render judgment thereon. Commissioner Spence -Jones: Right, right. Ms. Bru: So it's a very compelling mandate that this Commission -- Commissioner Spence -Jones: Right. Ms. Bru: -- has. And one can understand because what we have here is we have an officer. He is an officer, just as you are officers. Commissioner Spence -Jones: Yes. City of Miami Page 5 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Ms. Bru: You're elected officer; he's an appointed officer. He has a responsibility and a duty under the Charter to carry out the duties of his office, and he has been suspended -- he's been deprived of his otherwise rightful duty to hold his officer -- Commissioner Spence -Jones: Right. Ms. Bru: -- or obligations and responsibilities of the office. So it is clear that the Charter envisions, just like it does when there's a vacancy in the office of a Commissioner, the Charter speaks very clearly about having a hearing within 10 days -- Commissioner Spence -Jones: Right. Ms. Bru: -- and appointing someone, otherwise there's an election. So it is a compelling statement. However, as with all processes of this Board, you know, a motion to continue will always be in order for a good and substantial reason and for a reasonable amount of time . And it's up to this Board to deliberate and determine number one, whether there's a good and substantial reason for a continuance and then decide what would be a reasonable amount of time. Commissioner Spence -Jones: Okay. Commissioner Suarez: Mr. Chairman. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes. Commissioner Suarez: Go ahead. Vice Chair Carollo: Thank you. First of all, I welcome back Commissioner Spence -Jones. It's good to see you there. Andl could tell you that I agree with you substantially in everything you said. There's a lot of confusion out there. I actually went on radio last night to put some of the facts out there, because this isn't a popularity contest. This isn't whether I like the Chief or I like the Mayor or -- this is not about that. We are acting as a quasi judicial board. As far as the timing, yes, in all fairness, it's not 61 million anymore. It's 62.5. I even argued that it was higher than that, but let's just go with what our new budget director said, which is 62.5. I have stated that I thought the timing was horrible. You have just heard from another Commissioner mentioning the timing, andl know that yet a third Commissioner has mentioned the timing of this suspension and so forth. So do I believe it's the wrong time? Absolutely. I'll go a step further, Commissioner. As far as asking, inquiring, there's my e-mails (electronic) from a month ago respectfully requesting an explanation not once; twice. How would you feel, as a Commissioner, if you asked your City Manager -- and I'll read you the last e-mail thatl sent him, dated August 8, at 10: 47 p.m. Dear Mr. Manager, thank you for your explanation thus far, and I appreciate your offer to meet in order to discuss further. However, I respectfully request again that you provide me with a thorough detailed written explanation of all the issues mentioned below in order to have full accountability. Additionally, if you believe that the Chief of Police is making decisions that place our public at risk, then please also provide me with some thorough detailed written explanation. Remember, I will be answering to constituents' complaints regarding crime andl and the citizens of this City deserve to have transparency and full accountability of the occurrences, especially when it deals with public safety. Thank you, Commissioner Frank Carollo. I'm still waiting for it. I haven't received it. So where I'm going with this is, as you mentioned you haven't followed Commission meeting, I didn't vote for the ratification of the Manager. The main issue that mentioned was his judgment. Andl don't think it was correct, the judgment, right now for the suspension. With that said, you know, I come in here with a clean slate, ready to hear his arguments. Andl think the only fair thing to do is to hear exactly City of Miami Page 6 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 his cause, his evidence, his presentation, and then also hear from the Chief. Now saying all that -- because I agree with you, I truly do. I agree with you. I truly understand. I'm also looking at our Charter, and our Charter is very specific, you know. It needs to be -- the facts need to be presented to the Commission, who, within five days from the date of receipt of such notice, shall proceed to hear such charges and render judgment thereon, which judgment shall be final. So I'm concerned 'cause it appears like we will be in violation of our Charter. Again, I heard you. You spoke to him prior to him making the suspension. Believe me, a month prior I was trying to at least get some type of explanation, inquiry, andl didn't receive it, so I understand you wholeheartedly. But at the same time, I'm seeing what the Charter says -- and I'll go a step further. Should there be a continuance, are we going to be paying the -- I don't know what to call -- ex -Chief or suspended Chief Chief Exposito's salary for X'humber of -- you know, when we're in a budget crunch? You know, the Charter's also very specific as far as five days, you know. That, to me -- and I'm not an attorney -- would seems that there should be some type of speedy trial, and the main reason for this continuance is for -- because of the budget and for you to get acquaint -- so I would think this continuance has to be at least for 30 days, more or less. So from 5 to 30 days -- and in all fairness, I'm concerned about public safety. As you all very well know, we have received information as far as possible terrorist attacks, you know, and that's a -- that is an issue that is extremely important to all of us nationally, locally. And to have all this, again, instability, within our police department, you know, in fairness to our acting Chief in fairness to Chief Exposito, in fairness to us, in fairness to the citizens, I would think we need to go on. But again, I have always been known to just debate, discuss, put it out there, and within my colleagues, come up with a decision and respect everyone's decision. So I'm willing to do the will of this Commission. But at the same time, you know, I stated certain things that I think also need to be addressed. Thank you. Chair Gort: Thank you. Commissioner Suarez. Commissioner Suarez: Thank you, Mr. Chairman. Commissioner, I completely sympathize with you on a multitude of different levels. First off I also agree with the sentiment shared here today that the timing is not ideal for a variety of different reasons. I also can sympathize because when I was elected, we didn't have a quorum. There was only two Commissioners at that moment, and I was rushed to be sworn in to decide the fate, I think an hour later -- I thinkl was sworn in at 12, and an hour later, at 1, there was an emergency hearing to decide what was going to happen with District 1, whether there was going to be a special election, et cetera. So I've been there, and I understand how difficult it is to kind of particularly given what you've had to endure over the last couple of years, to have to come in here and be kind of thrown into the fire. So I completely, completely understand. You know, andl kind of agree with what the Vice Chairman has said in terms of where we stand legally. I think the way the Charter fleshes things out, it doesn't give us the opportunity, unfortunately, to make the decision as to the timing. We may or may not agree with, you know, the Manager, we may or may not have confidence in the Manager, we may or may not have confidence in the Mayor or anyone else in this government, but we have to respect the procedure as outlined in the Charter. And the way I see it is actually the five-day rule or the five-day procedure is actually to benefit the suspended person so that that person has an opportunity, due process to come before this body and receive an impartial determination as to what charges have been levied against that person. Commissioner Spence -Jones: Right. Commissioner Suarez: So, you know, I understand where you're coming from totally. It's just -- believe me, there's a lot of things in this Charter that I wish I could change instantly. There's -- I think this Charter is flawed on a multitude of different levels, andl have argued in favor of that basically since I've been elected. Commissioner Spence -Jones: Right. City of Miami Page 7 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: Andl think, by the way, this procedure is one of those flaws. But in any event, I think it's unfortunate that you're put in a position where there are, you know, potential confusions in your district about what's going on and that's the unfortunate reality that we have to deal with, you know. We're in a situation where, you know, we have to deal with what's before us and not any of the external distractions. And it's a very challenging thing to do, but it's something that we're obligated to do. Chair Gort: Okay. Commissioner Spence -Jones: You have a comment? Chair Gort: Sure. Commissioner Spence -Jones: Okay. I just want -- andl definitely -- Commissioner Carollo, I think that you're absolutely right. The points that you actually brought up are very good points from the standpoint of you know, in the midst of all of that, the salaries and everything else that's associated with it, you're absolutely right. I just want to have clarity because we -- I did get at least briefing from our City Attorney in reference to the issue of the continuance, and it was communicated to me as long as the -- and that's one thing I've learned in the two years, about hearings. I know about hearings. If nothing else, I know about a hearing. Okay, so -- but what was communicated to me was as long as the hearing had actually commenced, right, okay, the five-day rule, okay, didn't necessarily apply to that. I want you -- just to have clarity on that, because I want -- before I got up here -- of course, you know I'm going to be briefed and make sure I'm not going to say something that doesn't make sense. So unless my City Attorney -- or I was communicated something different than whatl was in the prior briefing or at least staff was, I want to have clarity on that. Because it was communicated to me that as long as the hearing had commenced, right, that we could ask for the continuance after it had commenced, and that the five-day rule -- andl don't want to keep the Chief on hold forever either. Andl don't want our new Chief Manny, to feel like we don't want him to do what he needs to do, but I also want to do things right. So I just want to be clear because we keep bringing up the Charter, we keep bringing up the hearing and the five-day issue. Please, Julie, explain that 'cause I want to make sure it's the same thing that was communicated earlier. Ms. Bru: Yes. Commissioner Suarez is very correct. The Charter speaks in very compelling language. It's very clear, unambiguous. It says that you shall, within five days, proceed to hear the charges and render judgment. As with any meeting that occurs by this -- you know, that -- undertaken by this Board, there is always -- there will always be a situation wherein the Board will have to seek a continuance of the matter that is before them. What I have said is if there is a substantial reason why a continuance is warranted and it's for a reasonable period of time, it would not be out of order to do so. Now what is a substantial reason? It would be up to this Board to determine. Obviously, if we were in the middle of a hurricane warning, you know, we're not going to expect the Commission to sit here and have a hearing on this matter. So there could be numerous reasons why a Commission would want to continue a matter that would be valid. Commissioner Suarez points out, you know, the purpose of the five days is because we have an officer who has been dispossessed of his office and that officer is entitled to that office. So, you know, we all abhor suspensions because when there's a suspension, it means that things are uncertain, you know, the powers of somebody has been put into question. So all can say to you is that that was the advice that you were given. It is within your right to request a continuance. Obviously, it's up to this Commission to deliberate and determine whether there is a substantial basis for a continuance. Since the Charter is so compelling, I would say that there would have to be a compelling reason to entertain that continuance and vote on it. Commissioner Spence -Jones: Right. Andl just want to say, thank you guys both, Commissioner Suarez and Carollo, for at least chiming in on that and making sure I had a clear understanding. But before I got out here, I wanted to make sure, you know, for whatever reason, I had a full City of Miami Page 8 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 understanding about whether or not we could ask for the additional time because I felt that it was needed. But if we feel that it's necessary for us -- andl know that everybody just wants to get this done and over with andl don't have a problem with that. My only concern in the midst of this is that there's mass confusion in my district. And quite frankly, the only district that has really been affected by, you know, a lot of the Chief -related issues has been District 5, clearly. So you know, it's not a hurricane -- like you said, it's not a hurricane outside, but there are seven people that died on the streets in Miami. And the reality is, not saying one person is right and one person is wrong, but there is a perception that's out there. So while my other fellow Commissioners don't have to deal with what I have to deal with, I do. So whatever decision I make today, you know, without communicating to my constituents is wrong. Andl think that my City Manager putting me in this position is -- was not the right thing to do. But with that being said, if it is the will of the Commission to continue on with the hearing, I support that 100 percent. But I just want -- I felt that it was my obligation to express to you my concerns with how it was handled. Chair Gort: Madam Attorney, let me ask you a question. My understanding is according to the Charter, you got to have the meeting within five days. This is the meeting (UNINTELLIGIBLE) beginning to do. We have the right, if any one Commissioner request a continuance with a specific time, that that can be done, and we'll still be in compliance with the Charter. Is that what we're saying? Ms. Bru: Again, the Charter -- Chair Gort: I understand. There's no hurricane out there, but the -- Ms. Bru: Right. You know -- Chair Gort: Okay. Ms. Bru: -- who would have the right to challenge if you were to continue this matter? I would think that the Chief could say I'm being deprived of the rights that I have under the Charter to have this matter resolved within the five days that the Charter prescribes. What could the Chief do? He could go to court and have a judge, you know, issue some sort of writ compelling you to come back and hear this matter. What would the judge consider before he issues such a writ? Whether or not the reasons for the continuance were compelling. Since the Charter speaks with compelling language about having it done within five days, your reason would have to be compelling. That's -- Chair Gort: Okay. Ms. Bru: -- the opinion. Commissioner Suarez: Mr. Chairman, ifI may -- Chair Gort: Yes. Commissioner Suarez: -- just chime in real quick. I think it's a little bit more severe than that. If this hearing is not conducted today and judgment is not rendered, then I think the Chief could go into court and actually be reinstated automatically, andl think that's essentially what the holding was in Bryan versus Landis, which was the 1932 Supreme Court case which dealt with this issue. And in that case, essentially, the Chief in that case at that time was deprived of his due process rights under the Charter. The Charter was not followed. And one of the components of the Charter that wasn't followed specifically was a denial of this suspension hearing within five days as mandated by the Charter. So I think -- and by the way, the Court in that case reversed the action of the city and reinstated the Chief. So I think it's a little bit more severe than just, you City of Miami Page 9 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 know, what you mentioned. Chair Gort: Commissioner Sarnoff. Commissioner Sarnoff.. I -- first off andl mean this respectfully, Madam City Attorney. I think you're pretty much wrong on this issue. If you read the Charter, it says, if either of such Chiefs -- that'd be Chief Kemp, which would be the Chief of Fire, or Chief of Police,— be so suspended, the City Manager -- and as you know, the words -- the chosen -- shall -- it's not may. It's not can. It's not would. It's not ifI feel like it -- forthwith -- which is another word in law that means immediately -- certf the fact, which is the reasons for his suspension. And by the way, being a former prosecutor and public defender, this is the charging instrument. These are the only two reasons that we're allowed to consider as to why this Chief was suspended. So he was suspended for -- I guess it would be called insubordination, if you'd like to call it that. But he says you directed three officers in your administration to be stripped of all responsibilities, thereby circumventing my expressed directive to hold off on their demotions. And then the second reason being, you have continued to disregard my request about reducing overtime expenses by organizational restructuring. So those are the reasons -- that is what the certification is. Then it goes on to say, together with the cause of suspension to the Commission within five days from which date of receipt of such notice shall proceed to hear such charges and render judgment thereon, which judgment shall be final. Now that means that you have to hear such charges and render judgment thereon with words that do not equivocate. The case that Commissioner Suarez brought up, which is Bryan versus Landis, cited at 142 So. 650 is an interesting decision 'cause it was Guy Reeve who was the appointed Chief of Police continued to perform his duties until 1931 when he was peremptorily removed on a charge of insubordination against Reeve. Interesting enough, the underlying facts of Reeve -- and you have to actually go to microfiche to find this out -- is that a new mayor came in and he wanted his godson to be the new Chief ofPolice. Reeve was offered the Chief of detectives instead of the position he occupied as Chief of Police. Now the Bryan versus Landis decision is a very interesting decision and it's something that we should take heed of. I have a copy for every Commissioner. I think gave some out. In this case, they were discussing a new form of government and that new form of government was called a city commission. So in 1932 somebody had the forethought of actually creating this new government. And in this new government, it had Chapter 26 of our Code. But for purposes right now -- and I'm going to cite the Bryan decision a number of times -- this is what it says, 'cause I think this is something that as each one of us sit here, take in evidence, listen to what is said, examine that evidence, create due process -- this is what it says. This view is in harmony with the fundamental reasoning actuating the adoption of the commission form of municipal government. Listen to this. A new concept in municipal policy motivated and grounded on the principle of maximum efficiency for minimum cost. In other words, the greater boon and protection to society at the least burden commensurate with the protection given. How this can be -- how can this be if the power of appointment and removal is vested without recourse the City Manager or some other officer and use as an instrument to reward friends and punish enemies. So it's here -- this new form of government in 1932, which is now our present form of government, this whole design, this whole mosaic, which, you know, maybe Commissioner Suarez is right, it could use some modification, but this is where we are today. Andl think it's actually jurisdictional. I don't think we could kick the can down the road for 30, 40, 60 days and not render a decision. I just don't think jurisdichonally we could do that. I believe the Chief would be entitled to go to court, issue a quo warranto, andl think he would automatically be reinstated. Ms. Bru: Commissioner, just to clam -- andl agree wholeheartedly with you, butt am also saying that you can never construe a provision that requires that something be done in a certain amount of time as such that it would lead to an absurd result that if we were facing some compelling reason why this needed to be continued and the hearing couldn't take place, it would automatically result in a reinstatement or removal of the person. Now -- andl said it, the Commissioner's well within her right to request a continuance, but it would have to be a compelling reason. You would have to deliberate on it. And that is basically -- any legislative City of Miami Page 10 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 body has the right to continue a matter when there is a pressing need to do so, such as the Chief -- He could have walked in here today and said my wife is in the hospital having a baby andl need to continue this, andl think that a court would reason that we were not violating the Charter in that case. But having said that, I think that we both agree that, you know, we should go forward with the hearing at this time. Commissioner Sarnoff. Not to get -- Chair Gort: Okay. Commissioner Sarnoff. -- the last word in, but I guess being Commissioner, you get to do that. An act of God, I would concede with you, is called (UNINTELLIGIBLE) Deus, so the courts acknowledge act of gods [sic]. I don't know that they would acknowledge a Commissioner's request at this point. I don't mean that disrespectfully to Commissioner Spence -Jones by any stretch of the imagination. I'm just suggesting that if we do it, I think the Chief who has certainly shown his ability to go to court, will go to court and be reinstated. And if that's the will of this Commission, I think we should understand that. Chair Gort: Okay. Commissioner Spence -Jones: So Mr. Chairman, I'm fully -- again, I've heard everybody's viewpoint on this issue, andl definitely want to -- don't want to open up an additional can of worms because I think we've already had -- you guys have already had enough worm -- cans of worms opened. So I just wanted to at least state my position on the record. I am ready to continue with the hearing. And at this point -- at that point, render my judgment. Chair Gort: Okay, thank you. Mr. Manager. Johnny Martinez (City Manager): For the record, I have no godson in the midst of becoming chief of anything like that. I want to begin by thanking Chairman Gort and the Commissioners -- Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes. Commissioner Spence -Jones: Have to sworn in? Vice Chair Carollo: Yeah. As far as -- I think the City Attorney said that just like we do in the P&Z (Planning & Zoning) when it's a quasi judicial, everyone should be sworn in, everyone that's going to testify. Priscilla A. Thompson (City Clerk): Ladies and gentlemen, if you are here today and you will be testing in these proceedings, I need you to please stand and raise your right hand so that I can administer the oath. I think that would also go for the Manager. The City Clerk administered oath required under City Code. Ms. Thompson: Thank you. Chair Gort: Yes, sir. You have the floor. Mr. Martinez: Okay. I want to begin by thanking Chairman Gort and the Commissioners for convening this meeting today to consider this important and sensitive matter. Under the authority given to me under Section 26 of the City Charter and Section 42.2 of the City Code, I suspended Miguel Exposito on September 6, 2011. I have suspended Miguel Exposito for City ofMiami Page 11 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 violating specific conditions of his position. His actions constitute insubordination in a manner geared to undermine my authority. Section 26 of the Charter states that the Police Chief can be suspended for failure to obey orders or for any just and reasonable cause. Here lies the heart of the matter to show cause. On August 4, 2011, Miguel Exposito informed me that he needed to make some organizational changes due to a recent retirement. I asked him to try and promote from within to help boost morale. He stated that his intention was to promote from within. He also mentioned very casually that a demotion was going to take place. I did not inquire at that precise moment, thinking that the demotion was a low-level support position. However, later that morningl was informed by our HR (Human Resources) director that three high-level police command staff were going to be demoted, specifically the commander for Flagami, Ricardo Roque, the commander for Little Havana, Jose Perez, and the assistant chief for Administration, Roy Brown. Per my e-mail, which is in your package, dated August 4 to Beverly Pruitt, I asked her to hold off on the demotions until further notice. Miguel Exposito immediately came to see me accusing me of playing games. I find these words to be offensive and disrespectful. I told him that I wanted to apply the same standard of cause that he enjoys under Chapter 26 to these high-ranking officers. He stated that there was a picture of Roque on Facebook supporting Julio Robaina for mayor of Dade County and that Assistant ChiefBrown gave him incorrect numbers regarding the budget. I expressed to the Chief that I did not believe that his explanation constituted cause. I told Miguel Exposito that upon his return from vacation, we would revisit and discuss the matter regarding cause. On August 5, while on vacation, Chief Exposito sent me an e-mail -- it's in your packet -- copying me and all Commissioners criticizing my instructions not to demote the three officers at this time and advising me that he needs to circumvent or bypass the authority of these selected staff members in order to ensure the goals of the police department are not compromised. Please note that although the Chief of Police is free to communicate with all Commissioners, copying Commissioners on an e-mail disagreeing with a direct order from the City Manager constitute, in my opinion, insubordination geared to undermine my authority, of which personnel actions are solely within the City Manager's authority. On August 8, while still on vacation, Miguel Exposito sent another e-mail to all Commissioners and myself that effective immediately, the section commanders of the administration division will report directly to the Office of the Chief of Police. That's also in your packet. This action stripped Assistant ChiefBrown of his authority and responsibilities. Additionally, the e-mail stated lieutenants in the Flagami and Little Havana NET (Neighborhood Enhancement Team) service areas will report directly to the South District patrol major. Again, this stripped Commanders Roque and Perez of their authority and responsibilities. Miguel Exposito's e-mail further stated the administration division chief and the commanders of Flagami and Little Havana NET areas will not be consulted in regard to any administrative correspondence or operation decisions. Technically, did Miguel Exposito demote the two commanders and assistant Chief? No. One could argue they still have the same paycheck. They still have the same job classification. However, he did violate the spirit, intent, and the letter of my instructions by undermining and circumventing my clear directive not to take any action until we discuss this matter more thoroughly upon his return from vacation. This is equivalent to telling someone you're not authorized to buy a car, but they go out and lease one anyway. Miguel Exposito's actions to proceed against my directive have basically placed 84 years of combined police experience sitting at a desk doing nothing. If that's not a demotion, I don't know what is. The Webster dictionary defines demotion as to relegate to a less important position or to reduce to a lower grade, rank, or status. The key is status. They're at their desk doing nothing. And the complete act of insubordination, Miguel Exposito operationally carried out the demotions that I denied. His actions are a clear indication to me that he lacks the basic traits of a Police Chief judgment, leadership, and the ability to follow directives. The police department is a semi -military organization, and the foundation for this organization are based on discipline, chain of command, and the ability to carry out and follow orders. Just as the rank and file of the police department must allow the Chief -- must follow the Chiefs order, the Chief of Police does not get to choose which of my directive he follows. On July 19, I asked Miguel Exposito to prepare an immediate plan of action to reduce overtime cost which, as ofJune, was above the budgeted amount by $1.78 million. Since the majority of the overtime usage was in the City of Miami Page 12 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 area of field operations division, I recommended for him to consider, to consider as an option the reassignment of specialized units back to patrol. I also asked him for an update on the fuel consumption by the police department, which was escalating monthly without explanation. I asked for the responses and plan of action within a week. In an e-mail dated July 20 -- also in your packet -- copying Commissioners, Miguel Exposito responded as follows. As requested, I will make the personnel changes you cited in your e-mail -- which by the way he didn't do andl didn't ask him to do it -- but in that case I will not be held accountable for the increase in crime. I will also forward the documents you requested. I will not be held accountable for the increase in crime. I mean -- again, the Chief is free to communicate with Commissioners by copying Commissioners, but by copying Commissioners on an e-mail that serves to criticize a direct order from the City Manager, in my opinion constitutes insubordination geared to undermine my authority. Once again, Miguel Exposito's own statements are a clear indication and another example of his insubordination, lack of leadership, and lack of respect for the Office of the City Manager. As of this date, he has not provided the requested plan of action to address the overtime usage and the overage on fuel consumption at the Miami Police Department. The police department -- and it's part of your packet -- has procedures and departmental orders that govern its members. Departmental Order Number 1, Chapter 11, Section 11.632.5, titled Derogatory Remarks,'ho member or civilian employee of the department shall directly or indirectly speak critically or derogatorily to anyone regarding any official action, order, or instruction issued by a ranking or superior officer. It also states that the action or order of any City official, judge, magistrate, or other official agency shall not be publicly criticized. This is important because Miguel Exposito has violated his own departmental orders repeatedly by publicly criticizing elected officials. The Chief must be held to the same standard as the rank and file. If we allow him to violate his own departmental orders and do not find him to be insubordinate, how can we apply the standards to others within the police department? In conclusion, I can assure you that the suspension of Miguel Exposito is not politically motivated. I can also assure you that his suspension has nothing to do with the Chief being above or below line items on fuel or overtime, has nothing to do with that. It only has to do with insubordination. Some have asked, is this the right timing for the action considering that we should be concentrating on the budget. I submit to you that it's always the right time to do what is right. Once this is over -- I mean, the budget is not frozen right now. People are still working on it. It's not in limbo. I do not consider this a distraction because it's part of my job to effectively manage City personnel. When I accepted this job as City Manager, I was asked by many my intentions with regard to Chief Exposito. I responded that would evaluate him with every -- along with every other director. To date, there are three other directors that are no longer with the City. Please note that supported Miguel Exposito recommendation to hire additional officers, contrary to the recommendations of the Fraternal Order of Police. However, I do not believe that Miguel Exposito has the judgment or leadership ability to lead the City of Miami Police Department. As your City Manager, I respectfully request you support my decision to terminate Miguel Exposito in order to restore the City's ability to function in a professional and orderly manner. Commissioner Sarnoff. Mr. Chair. Chair Gort: Yes, sir. Commissioner Sarnoff. You are withdrawing the -- one of your stated charging documents reasons that he is -- let me just finish my statement, then you can either agree or disagree. You are withdrawing your second reason, which is you have continued to disregard my request about reducing overtime expenses by organizational restructuring? IfI heard you correctly -- Mr. Martinez: Well, my intent was -- the point is not that he's over or under. The point is that I asked him for a plan of action and he just was insubordinate about it. It's not whether he's above or below. It's that I wanted a plan of action for him to consider and he didn't do it. It's not whether he's above or below. City of Miami Page 13 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. So it's not being overtime -- it's not the issue that they have overtime. It's the fact that he was insubordinate to you in the way he responded to you regarding overtime. Mr. Martinez: Exactly. That's exactly my point. His response is what's at issue here. Chair Gort: Does that conclude your --? Mr. Martinez: Yes, sir. Chair Gort: Okay. Yes, sir. Ruben Chavez: Good morning, Mr. Chairman. Chair Gort: Morning. Mr. Chavez: Ruben Chavez, on behalf of Chief Exposito. Just a few brief opening remarks -- andl do have a question. I intend to reserve my questioning of Mr. Martinez until after I put on or commence my order of proof Brief opening remarks. As I indicated earlier, my name is Ruben Chavez, andl represent Chief Exposito in these proceedings wherein you shall render judgment on the charges just brought against the Chieffor basically insubordination. Now as a matter of background, Chief Exposito is a 37-year veteran of the police department, specifically the City ofMiami Police Department. No doubt that as a member of and now leader of what is otherwise a paramilitary organization, he is well acquainted and familiar with the term insubordination and what it constitutes. In this instance, we intend to show, through testimonial evidence, as well as the documents supporting the City Manager's charge of insubordination, that Chief Exposito was in no way insubordinated -- insubordinate to the wishes, directives, and otherwise orders of the City Manager. One particular issue is specifically important in these proceedings. When we commenced, City Attorney Julie Bru indicated that you will sit in judgment. Well, not only will you sit in judgment, but you are also the triers here. You are the jury. You will sit here and evaluate the two points of insubordination and whether or not the charges brought by the City Manager convince you. Those aren't my words. Those are Ms. Bru's words when we began this proceedings [sic]. That is layman's term for the City Manager carries the burden of proof here. He has to prove to you whether or not the responses and the concerns that Chief Exposito raised in the documents attached to the charging document that Commissioner Sarnoff showed us actually constitute insubordination. At the end of this journey -- and all we're doing is placing bricks on a wall step by step as we elicit the testimonial evidence and the brief documentary evidence before you -- I have no doubt that once you evaluate the evidence fairly, impartially, without consideration of extraneous and outside factors, that the actions charged by City Manager and the specifics raised as insubordinate acts will not lie. Thank you. One inquiry: Is the Manager done providing evidence to the panel? In essence, has he rested his case in chief? Chair Gort: I believe he rested his case. Mr. Chavez: Then the defense will commence his. I call to the podium Chief Exposito. Commissioner Suarez: Mr. Chairman, may I ask a question? Chair Gort: Yes. Commissioner Suarez: Thank you. I noticed that when we were swearing in witnesses, that you -- there were some witnesses that were, I guess -- I presume on your side of the aisle, so to speak. Are those witnesses that are going to be presented in rebuttal of whatever testimony, or are those witnesses that support the case that you've outlined? City ofMiami Page 14 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Just in case -- I had them sworn in just in case the Chief brings up something that needs to be rebutted. Commissioner Suarez: Okay. Thank you. Vice Chair Carollo: And Mr. Chairman. Chair Gort: Yes. Vice Chair Carollo: Can we verin, everyone that was sworn in? Because there was people standing all over, andl just want to make sure we know everyone that was sworn in. Is that possible before --? Ms. Thompson: Vice Chair -- ifI may suggest. What we can do, if you would like, is to circulate around with, you know, individuals to sign in as they normally do. That way, when they come up to speak, you know, they would -- we can actually administer the oath again, but have a list of the witnesses to verin, the speakers who have been sworn in. Commissioner Sarnoff. Well, just be careful with that because this is not a public hearing. Chair Gort: Right. Commissioner Sarnoff. And don't mean to take the Chair's position, but the attorneys or the Manager will decide who they're going to call, so I don't want everybody jumping up and say I have something to say about this. Chair Gort: It's very simple. All those that were sworn in before, will you please stand again? Okay. Vice Chair Carollo: And can we, for a second --? I believe -- I know I saw Assistant City Manager -- Mr. Cabrera also. I just want to make sure everybody -- Chair Gort: Okay? Vice Chair Carollo: Thank you. Chair Gort: Thank you. Mr. Chavez: Chief just as a matter of background, go ahead and explain to the Commission your background and your experience in law enforcement. Chief Miguel Exposito (Police): Good morning, Commissioners. I am a member of the Miami Police Department, andl have been with this department for 37 years. I have been the Chief of Police for the last approximately year and a half. I went up the ranks of the police department; police officer, sergeant, lieutenant, captain, to the highest civil service rank. I was appointed major in 1988, andl was appointed Chief in 2009. Mr. Chavez: Now as Chief are you allowed to make appointments to your staff? Chief Exposito: That's correct. Department director in the police department has the authority to select his staff. Mr. Chavez: Is there a distinction between appointed positions and civil service? City of Miami Page 15 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: Yes, there is. In the case of the Chiefs staff they serve at the will of the Police Chief. The Chief needs no cause to remove any of his staff members where -- Commissioner Suarez: Mr. -- excuse me. Mr. Chairman. Chair Gort: Yes. Commissioner Suarez: Just a quick question for the City Attorney, please. The testimony that we're hearing is obviously the Chief's construction of what he believes to be legally correct within the Charter. It's for us to decide whether or not we feel that his statements are proper interpretations of his legal obligations under the Charter, correct? Ms. Bru: Commissioner, if at any time during this proceeding you feel that you want to have instruction on a Charter provision or a Code, I am here to do that for you. So if you have a question about anything that's being, you know -- Commissioner Suarez: I just want to clarify that there's a difference between the testimony that we're going to hear and its relevancy regarding what the law actually is of the City ofMiami. It could be someone's opinion that this is what the law is and this is what my duties and responsibilities are and that may conflict with what the Charter states. And so I don't want to give the impression that if someone comes up and says my duties are x 'Y,'br Z, 'that they are in fact X 'Y,'br Z. " Ms. Bru: Correct. Commissioner Sarnoff. Can I make a suggestion? Commissioner Suarez: Sure. Commissioner Sarnoff. You mind? Chair Gort: Go ahead. Commissioner Sarnoff. Most people testify as to what their understanding of their position and duties are. We should get instructed at the end of this case by the City Attorney as to what the Charter says and then we can interpret. But everybody should be testing that's their understanding of their duties and what their rights are. Commissioner Suarez: Agreed. Chief Exposito: Okay, going back to my testimony, my previous testimony. The Chiefs staff serves at the will of the Police Chief. That is my understanding of how it works, where the difference with other positions in the police department, the police officer, sergeant, lieutenant and so on and so forth, are civil service positions and those individuals need cause to be demotedfrom those positions. Mr. Chavez: So let me understand this correctly. Those persons that are appointed to your staff -- let me start with this one. What is the highest civil service rank? Chief Exposito: The highest civil service rank in the City ofMiami is captain of police. Mr. Chavez: Okay. And in order to be demotedfrom captain to -- would that be lieutenant? Chief Exposito: Yes. City ofMiami Page 16 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: -- do you have to show cause? Chief Exposito: Absolutely. Mr. Chavez: Now when you promote someone to what is otherwise an unclassified position, what positions are those generally? Give us some examples. ChiefExposito: Generally, executive assistant, senior executive assistant to the Chief majors, commanders, assistant Chiefs. At one time, we had deputy chiefs. We no longer have that. Those are appointed positions. Mr. Chavez: And on those appointed positions, historically, has any of your predecessors required to show cause, to the best of your knowledge, whenever those individuals were rolled back to their civil service ranks? Chief Exposito: I've had an opportunity to speak to several chiefs, former chiefs, and it's my understanding they've never had a problem with selecting their own staff because that is that individual's staff and they decide who is a member of their staff. Mr. Chavez: Now walking through the process a little more detailed, when you seek to roll someone back to their civil service rank, walk me through the process. Do you need to seek City Manager's approval? Chief Exposito: The City Manager has to sign off on those promotions or appointments and rollbacks as the Employee Relations Department is the one that prepares the paperwork and they work -- or in the past they've worked for the City Manager. Mr. Chavez: Okay. And why is that? Chief Exposito: I have no authority over the director of the Employee Relations Department, and therefore, I cannot order or ask that they prepare the paperwork that needs to be signed. Mr. Chavez: And Employee Relations, is that Human Resources? Chief Exposito: Basically, it's another city department. And as I mentioned in the past, that department has been under the City Manager's office. Mr. Chavez: So ultimately, ER or Employee Relations process the paperwork, and since they work under the City Manager, that paperwork is presented for finalization to the City Manager. ChiefExposito: That is correct. Mr. Chavez: And is that -- all that process done at your request? Chief Exposito: It's done at my request, yes. Mr. Chavez: Now before August of last month, August of 2011, had you done any rollbacks in your department? ChiefExposito: Yes, I have. Mr. Chavez: In any of those instances, were you asked to show cause to the City Manager as to the reasons for those rollbacks? ChiefExposito: No, I didn't have to show cause. There was one situation involving Deputy City of Miami Page 17 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Luis Cabrera where then -City Manager Carlos Migoya said he had no qualms about the demotion or the rollback of Luis Cabrera. However, he felt that needed to discuss that with the Mayor. I went to see the Mayor. I told him what my intentions were. He had no qualms about it. I even gave him a suggestion. He had an open assistant city manager's position, andl told him that's your choice, but there's an assistant city manager's position. You might want to discuss that with Mr. Migoya, and if he so chooses, he can go ahead and make him an assistant city manager, but as far as the police department is concerned, I am rolling him back to lieutenant. I then went back to the City Manager, explained to him what our conversations were, the Mayor's and myself, and he said that he would go ahead and sign off on the demotions or rollbacks. Mr. Chavez: Currently, Mr. Cabrera, how's he listed? Chief Exposito: Well, that's interesting 'cause in the last several months I've discovered that Mr. Cabrera still shows as a deputy chief in my police department, and we're not budgeted for a deputy chief. I have three assistant Chiefs andl have myself and it's not in the budget, which was one of my concerns, particularly since I was under the gun for being over -- what was perceived to be over budget. Mr. Chavez: Now, correct me if I'm wrong, but did Mr. Cabrera himself also request the rollback? Chief Exposito: That's correct. He prepared an interoffice memorandum where he requested to be rolled back to the rank of lieutenant. Mr. Chavez: Now, in that -- you know, in going back to the original point at hand, would it be fair to say that it is routine and customary practice for the City Manager's office to effectively sign off on any rollback requested for the Chief pertinent to his staff on an unclassified position when dealing with those members of his staff? Chief Exposito: That is my understanding, and that is the same information I received from former chiefs in the City ofMiami. Mr. Chavez: And that was your experience since you became Chief in November of 2009? ChiefExposito: That is correct. Mr. Chavez: Now let's go to the first issue of insubordination. The specific charge against you is that you directed three police staff members in your administration be stripped of all responsibilities, thereby circumventing his expressed directive to hold off on their demotions. You understand that charge as levied against you? ChiefExposito: Yes. Mr. Chavez: Did you have any conversations with the City Manager with regard to rollbacks of certain individuals on your staff in August of 2011? ChiefExposito: Yes. On August 1, I went -- Mr. Chavez: August 1 or 4? ChiefExposito: No, the 1st. Mr. Chavez: Thank you. City ofMiami Page 18 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: August 1, it was a Monday, I dropped by the City Manager's office. I thought that maybe he was between meetings andl could catch him, because I had to fill two vacancies in my personal -- in the Chiefs staff one being a senior executive assistant position and another one being a major's position that were vacant as a result of retirements. I also went by to inform him that I wanted to make changes to my staff as well. When I arrived at the Manager's office, he was in a meeting with Mr. Cabrera, and he came out after his secretary texted him and let him know that was there. I had told his secretary that could come back later if he was busy, but she said, no, he may want to meet with you. After a short meeting on an unrelated item with Mr. Cabrera and Mr. Martinez, I sat down with Mr. Martinez. I explained to him that I wanted to fill the two vacant positions, andl also informed him clearly that wanted to make some changes in my staff. Andl told him that they were three staff positions. Mr. Martinez's only concern was that not bring anyone from outside the police department. I ensured him that that was not my intention, that the promotions would be coming from within the ranks of the Miami Police Department. And he said then I really don't need to be involved. Andl said, yes, you do because there is an issue here and that issue is -- Mr. Chavez: What was that issue? Chief Exposito: That issue is that at that particular time Mr. Martinez had Employee Relations reporting to Mr. Cabrera, andl thought that there might be some interference there. He told me that wasn't going to be a concern, that he was going to have this issue handled directly between Ms. Pruitt, who's the ER director, and himself, andl would be the other person involved, and that Mr. Cabrera would be excluded from anything relating to those demotions or promotions or rollbacks or appointments. Mr. Chavez: And I'm going to use the term rollback and demotion interchangeably. Now did he make any communications in your presence, to the best of your knowledge, with ER concerning both, the promotions and the rollbacks? Chief Exposito: He picked up the cell phone and he calledMs. Pruitt, andl couldn't hear the conversation -- what the conversation was, but it had something to do with that. And before I left the meeting, he told me that she would be taking care of that problem. Mr. Chavez: When you mentioned the rollbacks, did you identify the individuals at that time? Chief Exposito: No. I did not give him any names. He didn't ask for them, and that was the extent of our conversation. Mr. Chavez: Did he otherwise exhibit any concern for who was going to be rolled back? Chief Exposito: Absolutely not. Mr. Chavez: Did you or anyone from your office eventually provide the names to ER, or Employee Relations, regarding both, the promotions and the rollbacks? Chief Exposito: I believe it was our personnel unit that may have calledMs. Pruitt. It's possible I could have called her, but I really can't be sure about that. But she did get the names and she started working on -- Mr. Chavez: Moving forward to August 4, were the rollbacks done by that time? Chief Exposito: There were several conversations between our personnel unit and Ms. Pruitt's office to make sure that they were still working on the paperwork. On August 4 in the afternoon, I calledMs. Pruitt andl asked her if the paperwork had been completed. City of Miami Page 19 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: And what did she say? Chief Exposito: She indicated to me that it was, that the paperwork had been completed. However, I needed to talk to the City Manager to speak with him about that issue. So I wasn't clear on why I needed to speak with him because he had already told me that could move forward. But in any case, I decided to call the City Manager. When I called him, the City Manager told me that he was holding off on the promotions. I was surprised because there were no issues relating to the rollbacks in any prior conversation that I had with him. So I thought it'd be best ifI went down to his offices andl had a conversation with him in person, which I did. Mr. Chavez: And this was August 4? Chief Exposito: That's correct. Mr. Chavez: And when you had a conversation with him, at that time were the individuals that were to be the subject of the rollback identified? Chief Exposito: Yes. Mr. Chavez: And who were they? Chief Exposito: That was Assistant Chief Roy Brown and Commanders Ricardo Roque and Jose Perez. Mr. Chavez: At that time did he ask you any of the reasons for the demotions? Chief Exposito: He just told me that he was going to hold off on the rollbacks, and he really didn't specin, a reason, so I asked him if he could put it in writing, which he did. He sent an e-mail. Mr. Chavez: I'm going to approach the witness. I've handed you what's been described as the charging document. Chief Exposito: Yes. Mr. Chavez: Now on the second page of that charging document, I believe there's a series of e-mails attached, correct? Chief Exposito: That's correct. Mr. Chavez: I want to draw your attention to the e-mail to Beverly Pruitt from City Manager Johnny Martinez, dated August 4. Was this e-mail generated after your request to put it in writing? Chief Exposito: That is correct. He generated this e-mail. It was actually addressed to Ms. Pruitt with copies to me. Mr. Chavez: For the benefit of the record, please read it to the Commissioners. Chief Exposito: It says, Beverly, I do believe in principle that every director needs to run their shop and be held accountable. However, please hold off on the three proposed demotions by Chief Exposito until further notice. Thank you. Johnny Martinez, PE (Professional Engineer), City Manager. Mr. Chavez: Ultimately, there's a principle identified in there, in that e-mail? City of Miami Page 20 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: Yes. Mr. Chavez: And that principle is what? ChiefExposito: That each director should be able to run their own shop. Mr. Chavez: And be held accountable for it. ChiefExposito: That's correct. Mr. Chavez: Okay. Otherwise, should you be held accountable if someone that you requested be rolled back commits whatever it be, does something wrong? Should you be held accountable if that rollback was refused? ChiefExposito: I don't think it's fair that should be held accountable for the actions of an individual that I want to rollback to another position. Mr. Chavez: Did you respond to that e-mail? Chief Exposito: Yes. What I did is I sent -- I waited 'til the next day, the following day, andl responded to him in an e-mail. I had some concerns about leaving these individuals in those positions. Mr. Chavez: What was your purpose of writing the August 5 e-mail? Chief Exposito: I wanted for him to understand my concerns as far as that there were concerns with the way that the department would be running with these individuals in those positions, and I also wanted to make sure that he was noted that -- of what actions I was going to take. Mr. Chavez: To confirm, was the goal of your August 5 e-mail to City Manager Johnny Martinez was to advise of certain actions that you needed to take within your staff? ChiefExposito: That is correct. Mr. Chavez: You wanted to inform him of what you needed to do and otherwise to run a more efficient shop? ChiefExposito: That is correct. Andl -- that was the purpose of my e-mail was to inform him so that he was clear as to what actions I was going to take and also inform him that it was going to create a problem for me, the fact that he was basically tying my hands, butl would follow through on that. I would just have to take other actions that under the authority that's given to me, I could go ahead and reassign these individuals. Mr. Chavez: Why did --? Now you copied various individuals on that e-mail. Chief Exposito: Yes, I did. I copied the Mayor andl copied the Commissioners, and the reason I did that is because a couple of these individuals work in NET service areas that work closely with the Commissioners, andl wanted to make sure that the Commissioners were aware of it, and I didn't want to slight anyone, andl wanted to make sure that all the Commissioners were also informed. Mr. Chavez: So to be clear, were you alerting the Commissioners of certain changes with regards to the officers that were responsible for their respective areas? Chief Exposito: That's correct. I wanted them to be informed that they no longer were going to City of Miami Page 21 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 be dealing with those individuals and that I had made changes as far as the people that would be -- they would be working for -- or with in that area. Mr. Chavez: When you prepared the August 5 e-mail, was it your intent to undermine the City Manager? Chief Exposito: No, it was not. Andl don't feel that my intent was to in any way embarrass him. I don't see by reading the e-mail where it should have embarrassed him, and that was definitely not my intent. It was to inform and to make sure that he understood exactly what I was doing and why I was doing it. Mr. Chavez: Now let's be clear. He's your supervisor. ChiefExposito: That's correct. Mr. Chavez: Was it also your intent to inform the Commissioners? Chief Exposito: That's correct. As I mentioned before, they work closely with some of these individuals that were affected by my moves. Mr. Chavez: Now -- and correct me if I'm wrong -- were you set to go on vacation that following Monday? ChiefExposito: Yes. Monday morningl was leaving on vacation. I waited through the weekend. Mr. Chavez: Now --I -- and please, just for clarification sake, this e-mail was sent at 11 o'clock in the morning, 11: 09, to be specific? Chief Exposito: Yes, 11: 09 on a Friday afternoon [sic], which was August 5. Mr. Chavez: Did you get a response in the afternoon of August 5 to this e-mail? Chief Exposito: No. No, I did not get a response from Mr. Martinez. Mr. Chavez: Did you get a response on August 6? ChiefExposito: No, I did not. Mr. Chavez: Did you get a response on August 7? ChiefExposito: No. Mr. Chavez: Was it important for you to know what was going to happen within your department before you left on vacation? ChiefExposito: It was very important. I was leaving someone acting in my stead, and I wanted to make sure that the department was operating the way that it was intended to operate. Mr. Chavez: And have you had communications with your supervisor, City Manager Johnny Martinez, after regular business hours, let's say at 8 o'clock at night before? Chief Exposito: Well, I've gone to meetings where he's been present and we've talked about other issues, yes. City of Miami Page 22 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: And has he sent you e-mails really early in the morning, like around 7 o'clock, 7: 45 in the morning before? Chief Exposito: Yes. Mr. Chavez: No response the morning ofAugust 8? ChiefExposito: No. Mr. Chavez: Did you send another -- Did you feel that you were authorized to make the changes having heard no objection to your informed intentions neither on August -- the afternoon of August 5, August 6, August 7, and the morning ofAugust 8? Did you feel that you had the proper authority to undertake the actions which are now under scrutiny? Chief Exposito: Absolutely. I received no response that the Manager had any objections to me moving these individuals, and therefore, I went ahead andl made those changes that I felt were necessary, andl also informed him of those changes so that he would be aware of it. Mr. Chavez: What were those changes? ChiefExposito: The changes were that was reassigning these three officers to different duties and that they no longer were going to be in those areas, just as I had mentioned in the Friday afternoon -- or the Friday e-mail that I had sent him, that I would need to move them. Mr. Chavez: You essentially reassigned the officers to different duties. ChiefExposito: Yes. Mr. Chavez: Did you at any time strip them of their rank? ChiefExposito: No. Mr. Chavez: Did you at any time reduce their pay? ChiefExposito: No. Mr. Chavez: These three individuals, specifically, who are they again? Chief Exposito: Assistant Chief Roy Brown. Mr. Chavez: And what position does he hold? Chief Exposito: He was the assistant Chief in administration. Mr. Chavez: And to the best of your knowledge, is he still an assistant Chief somewhere in the department? ChiefExposito: Yes. Yes, he is. Mr. Chavez: The second individual is Ricardo Roque, if I'm not mistaken? ChiefExposito: That's correct. Mr. Chavez: What was his unclassified position? City of Miami Page 23 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 ChiefExposito: His unclassified position was police commander. Mr. Chavez: Does he still hold that position today, to the best of your knowledge? ChiefExposito: Yes, he does. Mr. Chavez: And the third individual, if I'm not mistaken, was Jose Perez? ChiefExposito: That's correct. Mr. Chavez: And what unclassified position did Officer Perez hold? ChiefExposito: He holds the position of police commander as well. Mr. Chavez: And to the best of your knowledge, does he still hold that position today? ChiefExposito: Yes, he does. Mr. Chavez: Now let's be clear. By reassigning these individuals, were you somehow insubordinate to the wishes of the City Manager? ChiefExposito: No, I was not. And I even included in my e-mail that it wasn't the optimum way to run a police department, but I believed that I had to do it for -- to make sure that the department was operating the way that it was intended to be operated. Mr. Chavez: And consistent with your philosophy. ChiefExposito: That's correct. Mr. Chavez: And you referenced an e-mail, but you're not referencing the August 8 e-mail, are you? ChiefExposito: I'm sorry? Mr. Chavez: Which e-mail are you referencing, the August 8 or the August 5? ChiefExposito: Oh. On the August 5, I made clear that that was not the optimum way to run a police department. Mr. Chavez: And that's the one that you wrote to inform not only the Commissioners but the Mayor and your supervisor, the City Manager, of hey, I'm going to have to undertake these actions. Please let me know. ChiefExposito: Right. You are correct. Mr. Chavez: No response, right? ChiefExposito: No, none. Mr. Chavez: Had Mr. Martinez told you in response to your August 5 e-mail, do not circumvent, bypass, or otherwise reassign these individuals, what would you have done? Chief Expositor I would have followed his orders or his wishes. Mr. Chavez: And left those gentlemen where they were? City of Miami Page 24 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: That's correct. Mr. Chavez: Moving to the second point of insubordination against you. It's been quoted as a continued disregard for request to reduce overtime expenses by organizational restructuring consistent with prior directives. Do you understand that charge as it has been levied against you? Chief Exposito: I understand the charge. I don't know the real reasons behind it other than what is stated in the document. Mr. Chavez: Have you had an overtime issue in the department this year? Chief Exposito: Yes. We do have an overtime issue in the Police Department. Right now we are down 64 police officers, which is over 5 percent of my total number of officers in the police department, and still have to provide public safety, which is my primary concern. Mr. Chavez: Now let's walk through this step by step. You have less officers this year than you had last year. ChiefExposito: Yes. Mr. Chavez: Typically, the concerns that have been raised concerning the overtime expenditures of the department, had they been concerning or surrounding issues of the budget, the departmental budget? Chief Exposito: Yes. They have been a budgetary issue. Obviously, we're concerned about that. Ironically, this year we were cut by $5 million for overtime from the previous year, andl think the reason it was done is because I saved $5 million on overtime last year, and the Manager's office apparently believed that I didn't need those $5 million. As a matter of fact, this same Commission commended me for saving $5 million in overtime the previous year. Mr. Chavez: That was in September of last year, right? ChiefExposito: That's correct. Mr. Chavez: Now to be clear, your overtime budget is $5 million less this year than it was last year. ChiefExposito: That's correct. Andl think what creates a bigger problem isn't so much thatl had less money for overtime, but that had attrition, and now I needed that overtime to fill in positions so that can ensure public safety to our citizens and our visitors. Mr. Chavez: Your primary concern? ChiefExposito: Absolutely. Mr. Chavez: Now -- and you mentioned the term there, attrition. Please describe for the Commission and the benefit of those in attendance what is attrition. ChiefExposito: Attrition is when police officers retire, they quit basically, they're fired, they're arrested. That creates attrition. Mr. Chavez: So basically when you have a hole to fill a vacancy for a position for whatever reason, correct? City of Miami Page 25 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: Yes. Mr. Chavez: And you've been losing officers or you've been suffering attrition in the department for the entire year. ChiefExposito: That's correct. Mr. Chavez: So compounded by the attrition of 2011 and the $5 million cut in overtime budget for your department, would you agree with me that for 2011 you've been asked to do more with less? ChiefExposito: Without a doubt. Mr. Chavez: Have you done that? ChiefExposito: Absolutely. Mr. Chavez: Based on the information provided to you, what is your understanding as to whether or not your department is going to come into budget at the end of this fiscal year at the end of this month? ChiefExposito: The projections are that we will be within budget. There will be a surplus of funds at the end of the year. And think that the command staff of my police department has done an outstanding job to achieve this goal. Mr. Chavez: And this is the reason why you like -- or you have persons in the unclassified positions in your office because they share that philosophy. Chief Exposito: That's correct. They share my philosophy and my vision for this police department. Mr. Chavez: And that includes operating within budget. ChiefExposito: Absolutely. Mr. Chavez: Now in conjunction with the overtime expenditures that you've had, is the department slated to hire new police officers? Chief Exposito: Yes. Since last year, we've been -- we've sent requests to fill those vacancies, and it's actually a process that is outside the police department. Mr. Chavez: May I approach? With Mr. Commissioner's permission -- andl think we have a Commissioner absent -- I would like to hand out -- Chair Gort: Give it to the Clerk. Mr. Chavez: While they disseminate that information -- Commissioner Sarnoff. Are you going to ask him questions concerning this? Mr. Chavez: Not yet. Commissioner Sarnoff. Okay. City of Miami Page 26 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: While they disseminate it, I want to ask -- Commissioner Sarnoff.. 'Cause I'd like to read -- Mr. Chavez: -- a little background. Commissioner Sarnoff.. -- along when you ask questions. Mr. Chavez: Promise. Every time you were approached concerning the overtime expenditures in your department or the overages, was it in relation to concerns about general departmental budget? Chief Exposito: Yes, but it was mostly as a result of the vacancies that we had in our police department. Mr. Chavez: And I'll wait until the documentation is disseminated. May I proceed, Mr. Chairman? Chair Gort: We're still reading. Ms. Thompson: I'm just -- I'm sorry, Mr. -- Chair Gort: Yes, Madam -- Ms. Thompson: We are making copies for the City Attorney and the Manager so -- Mr. Chavez: Okay, I'll hold. Now I've handed you a memo from then -City Manager Migoya -- to then -City Manager Migoya from your office dated August 5, 2010. Is that correct? Chief Exposito: Yes, that's correct. Mr. Chavez: Now, you did not personally sign this memo. Chief Exposito: No. Mr. Chavez: It was signed by whom? Chief Exposito: It was signed for the acting Chief on that date, which would have been Deputy Chief Luis Cabrera. Mr. Chavez: And ultimately, what does this memo request? Chief Exposito: It's a request to fill 16 vacancies or police officer positions that we needed to bring our staffing to an acceptable level. Mr. Chavez: Flip to the next page. Well, was it approved? Chief Exposito: Yes, it was. It was approved on August 6, which would have been the day after it was actually submitted. Mr. Chavez: Flip to the next page. Chief Exposito: Okay. This next memo is a February 14 memo. Is that the one you're referring to? City of Miami Page 27 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Correct. Chief Exposito: All right. That was a memorandum that was sent by me to then -City Manager Tony Crapp, and it was an authorization to fill 31 police officer vacancies. Now these were above and beyond the 16 thatl had requested before. Mr. Chavez: So we're talking about a total of 47 officers that have already been approved for employment with the City ofMiami Police Department? Chief Exposito: That's correct. And the second memo was February 14 of this year. Mr. Chavez: Would it be fair to say that your first plan of --? Well, let's take it step by step. Having an additional 47 officers, would that hurt or help the overtime issues in your department? Chief Exposito: It definitely would make a big difference in helping the overtime situation. Mr. Chavez: Especially when you have $5 million less to work with, right? ChiefExposito: That's correct. Mr. Chavez: Now would it be fair to say then that your first plan of action in dealing with the 2011 overtime overages is filling those positions? Chief Exposito: That was my primary goal, right. Mr. Chavez: Walk us through the problem -solving process typically utilized when you encounter challenges such as overtime overages and budgetary issues such as those. Chief Exposito: Well, you have to come up with a plan of action. And with any plan, first of all you have to identin, what the problem is, which is what we generally do. You develop a plan of action, whatever that may be, and you implement that plan. After that plan is implemented, you have to monitor it to make sure that the goals that you want to reach are achieved and you make your adjustments accordingly, and we do that with all the problems that we face at the Miami Police Department. Mr. Chavez: Putting aside the common sense plan of action in filling the positions, did you have another plan of action in place for dealing with the overtime overages issues as of July of 2011? Chief Exposito: Yes. We did several things. We identified that there was a problem in our criminal investigation division where officers were going to court for -- or they were over at the State Attorney's Office for prefile -- pretrial conferences, and during those conferences, the State Attorney's Office would be giving these officers who were on overtime subpoenas or information to go pick up witnesses on their cases and things of that matter. When we came in -- or when our administration took over the police department, we identified that as being a problem and we corrected that inefficiency. And what we did was we ensured that the task was still being done, but we were doing it with on -duty resources so as not to spend overtime. And at one point, I think we saved about $560, 000 by making that change. In addition to that, we implemented what we called the ten-day plan, notification plan. And basically what that means is police officers in patrol, we cannot change their days off or their hours of work within six days. Mr. Chavez: Are there contractual constraints on that? ChiefExposito: It's a contractual -- part of the contract. It is the contract. And therefore, what we asked and what we ordered our officers to do on patrol is that they submit a written request City ofMiami Page 28 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 ten days before they took any time off other than sick leave, of course, that they would notify us in writing so that our administrative sergeants could keep tabs on our schedules to make sure that we didn't fall under minimum staffing. Minimum staffing is important because if you fall under minimum staffing, you cannot provide the citizens the service they expect and it becomes an officer safety issue. Mr. Chavez: Also becomes a public safety issue? Chief Exposito: Absolutely. Mr. Chavez: Now this plan -- did you implement a plan with regards to and leading up to July 19, 2011 with regards to notice before an officer can take a day off? Chief Exposito: That's correct, and that's the one I just described. And basically, what we would do is since it's outside that six -day minimum notification period, we could actually change the days off or the hours for the officers without violating the contract. So what the administrative sergeant would do is keep track of that, and if they saw that we fell under minimum staffing, they would make some adjustments in the schedule so that we could fill that without having to use overtime. Mr. Chavez: How many days' notice did you ask for? ChiefExposito: Ten days. Mr. Chavez: And we call that the ten-day notice plan? ChiefExposito: That's correct. Mr. Chavez: Now on July 19, 2011, did you receive an e-mail from the City Manager's office? ChiefExposito: Yes, I did. Mr. Chavez: Go ahead and -- I think you have a copy of that. And l just want to confirm, Mr. Chairman, that all the Commissioners have a copy of the charging document and corresponding attachments. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: I'm sorry, which document are you speaking about now? Mr. Chavez: I will be referring to the e-mail from Mr. Martinez's office to Chief Exposito, dated July 19, 2011. For purposes of identification, it appears in the bottom portion of the e-mail contained on the top, dated July 20, 2011, from Johnny Martinez to Jose Ortiz. Commissioner Carollo: Thank you. Commissioner Sarnoff.. Counsel, before you get to that -- Can I ask a question, Mr. Chair? Chair Gort: Sure, go ahead. Commissioner Sarnoff.. I want to understand something 'cause it's the first I've ever heard of it, andl think you're done with the issue, so I don't want to let it go too far. It is the policy of the State Attorney's Office to use our officers who are on overtime to go out and procure witnesses. City of Miami Page 29 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Is that what I heard? Mr. Chavez: Chief, if you could answer that question. Chief Exposito: That was being done at one time, and as soon as we were informed of that and we caught on, we took steps to -- where our guys do it on duty. But I think it's important because we got -- we have to make sure these cases are prosecuted, and that's why we were doing it. Commissioner Sarnoff. And they don't -- Chief Exposito: But we didn't want to do it on overtime, that's for sure. And we took it upon ourselves to correct that once we identified that as being an issue. Commissioner Sarnoff. And the State Attorney's Office isn't obligated or doesn't have the resources to procure witnesses? Chief Exposito: We've been through that quite a few times, back and forth, even before I became Chief of Police. Other chiefs of police have had issues with that as well, but we've never found any other way to do it to ensure -- Commissioner Sarnoff. Are there other departments, Metro Dade, City ofMiami Beach, Coral Gables, that equally have their officers go out and procure witnesses for the cases? Chief Exposito: I think they do it from time to time. I really couldn't give you an answer -- an absolute answer because I'm not sure. Commissioner Sarnoff. Okay. Mr. Chavez: Now when you received this e-mail offuly 19, 2011, what stage of implementation, based on the five steps of problem solving that you previously identified, was the ten-day notice plan? Chief Exposito: We were still in the monitoring stage. We had identified what appeared to be a problem with that plan, and part of the issue was that the officers that we changed their hours and their days to come in were not showing up for work. They were calling in sick that day. I know that we -- some of the officers -- the word around the station is that the union was telling them they were going to lose their sick time, so they started using their sick time. Mr. Chavez: Now on the July 19 e-mail from Mr. Martinez to you, did you receive a directive? Chief Exposito: Yes. Mr. Chavez: Andl really want to be clear on this issue. Please read for us the e-mail and then identifi, the directive provided to you from Mr. Martinez's office. Chief Exposito: Okay. It says, Chief a recent review of City expenditures for the month ofJune show that your overtime budget allocation for fiscal year '11 has been exceeded by $1.78 million. I'm requesting that you prepare an immediate plan of action to drastically reduce overtime costs. I understand that the majority of overtime usage is in the field operations division. I recommend you consider reassignment of specialized units back to patrol as an option. In addition, per our previous conversation, please provide me an update regarding the current fuel consumption by the police department. I look forward to your responses to the above request within a week. Thanks." Mr. Chavez: When did you --? City ofMiami Page 30 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: Johnny Martinez, PE, City Manager." Mr. Chavez: What's the directive identified there? Chief Exposito: Well, the directive is that come up with a plan of action to reduce the overtime. Mr. Chavez: So now we have to go back to the five steps of problem solving, right? Chief Exposito: That's correct. Mr. Chavez: Is there a directive that you -- andl mean order -- reassign specialized units back to patrol? Chief Exposito: Yes. Mr. Chavez: Is that an order or an option? Chief Exposito: Well, they -- it was put out as an option. That was something that I would consider. Mr. Chavez: And in fact, the sentence starts with 1'recommend you consider reassignment of specialized units back to patrol as an option." Chief Exposito: Yes. Mr. Chavez: Did you respond? Chief Exposito: Yes, I did. Mr. Chavez: Did it take you a week? Chief Exposito: No. I responded on the 20th, which would have been the next day. Mr. Chavez: Did you follow the directive that you develop a plan of action? Chief Exposito: Yes. Mr. Chavez: What was the plan? Chief Exposito: Well, what we did is we continued to monitor the initial plan, which was the ten-day rule, and we were still in the monitoring stage there. Andl had a meeting with Assistant Chief Richard Blom andl believe it was the executive assistant, Al Vega, and we had a meeting and we discussed exactly what the Manager had advised or he had recommended, which was to move officers from other units into patrol. Mr. Chavez: Now for clarity's sake, what's a specialized unit within the City ofMiami Police Department? Chief Exposito: Generally, it's units that are outside the patrol function. Mr. Chavez: Walk me through the process. I'm a bit new to the police procedure. Is a specialized unit like a patrol unit that's going to show up at my house for whatever reason, domestic, cat up in a tree? City ofMiami Page 31 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: No. Those are regular patrol units generally that respond to calls for service. That's their primary goal is to respond to calls for service and be visible in the community. Mr. Chavez: Reactionary units. Chief Exposito: All right, that would be our tactical units. Mr. Chavez: Okay. Chief Exposito: Those are the officers that get no calls for service. Their primary function is to look at statistical information that we provide on a daily basis that indicates where crime is occurring and doing what time they're occurring, and we deploy them to those areas so that we can impact on crime. Mr. Chavez: So these specialized units, are they proactive in attacking crime? Chief Exposito: Absolutely. And that was part of a three prong approach that we came up with when I first came in. I found that some of these tactical units were ill -trained, understaffed, andl increased the numbers and it made a big different. I mean, we -- our robbery rates are as low as we've seen in over 40 years, as an example. Mr. Chavez: Was there an example on August 22 regarding car thefts? Chief Exposito: Yes. We had 36, I believe, was the number of cars that were broken into in one area on a given night. And we used these tactical officers to set up surveillance, andl believe it was the next night we caught the offenders in progress and it made an impact on crime in that area. Mr. Chavez: Okay. Now the plan of action that you were -- well, first of all the directive was develop a plan of action, correct? ChiefExposito: That's correct. Mr. Chavez: The plan of action described with regards -- or recommended was that you take some of these specialized units and put them back in patrol, in a reactionary -type status, calls for service. ChiefExposito: That's correct. Mr. Chavez: Okay. Now did you implement that plan? And walk us through the contents of your e-mail dated July 20. And for the record's sake, please identify the time of date that you sent it. ChiefExposito: Well, first of all, what did was analyzed the situation that the Manager had recommended that we do. And the next morning at 7:19 a.m., I sent him an e-mail from my iPhone as a matter of fact. I must have been on the way in or something. But in any case, I sent him the message. And it said we have reviewed the overtime expenditures in the police department. As we discussed previously, most of the overtime costs derived from the fact that we currently have 54 officers less than we had the previous year, 'cause that's the number at that time. Now we're up to 64, but that's what it was, 54. This is a 5 percent reduction in the number of police officers in the police department. To fill minimum staffing requirements which ensure high visibility in our neighborhoods and officer safety, we have had to utilize overtime. I will stress, just as I did at a previous meeting, that representatives of the Fraternal Order of Police, FOP, were present, there has been significant savings to the City at the other end as a result of salary savings caused by the 54 police officer vacancies. The tactical operations section has City of Miami Page 32 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 played a vital and pivotal role in keeping crime under check. The reassignment of these officers to patrol isn't that simple. While it will save on overtime costs, there may be a significant increase in crime in our city. The plan that you are asking that we implement, which was the brainchild of the president and vice president of the FOP, will save money, which is that organization's primary concern at the time of negotiations, disregarding its effect on crime or officer safety, something I see as a priority. Furthermore, I want to point out that there is no budget in the police department for overtime costs associated with the Three Kings Parade, the Martin Luther King Parade, the Jose Marti Parade, and other similar events. As such, we have had to absorb these overtime expenditures that total hundreds of thousands of dollars. I was assured by your predecessors that the department would be reimbursed for these costs, but that did not materialize. In the next few weeks, I anticipate that we will be able to hire the first 16 of the 53 that I requested last year. This should help with our shortages. As requested, I will make the personnel changes you cited in your e-mail, but in that case, I will not be held accountable for the increase in crime. I will also forward the documents you requested. Miguel A. Exposito, Chief of Police. Mr. Chavez: Now, Chief walk me through the plan. Does this plan involve taking officers from their specialized units, tactical responses and putting them into patrol? And explain to the Commission how this works. Chief Exposito: Well, as I mentioned, we had a three prong approach. One of them are the patrol officers. They're there for handling calls for service, requests from the citizens, and high visibility whenever they can do that, if they're not too busy. The second prong is the tactical officers. As I mentioned before, we deploy them in the areas where crime is occurring during the hours that crimes occur. And the third prong is investigative. That's our homicide investigators, robbery investigators, et cetera. And what they do is follow up investigations after the crime has occurred. Now if you have all these three elements working together, you will solve crime and crime should start to decrease. But if you take out one of those three prongs, the system is broken and will not work appropriately. Andl know this because I've been in the police department for 37 years and I've seen things that work and things that don't work. I've learned a lot from some of my -- the previous chiefs. Some of them were very good and some of them were very bad, and I learned from both of them. Mr. Chavez: Now, effectively, when you initiated a new plan of action, were you acting in consistency and in accordance with the directive of the City Manager as conveyed to you on July 18 -- I'm sorry, 19? Chief Exposito: Yes, I did. I followed his instructions because although it was an option, we had had several conversations where he wanted to implement this plan of action, which was the brainchild, as I mentioned, of the FOP. Mr. Chavez: And to be clear, the actual develop -- the actual directive was to develop a plan of action, period, right? Chief Exposito: That's correct. Mr. Chavez: And then the recommendation was this tactical transfer plan whereby certain tactical officers will be placed in a routine patrol capacity. Chief Exposito: That's correct. Mr. Chavez: Okay. You did both. You followed the recommendation as well as the directive in this instance? Chief Exposito: Yes, I did. City of Miami Page 33 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Did you implement that plan? Chief Exposito: Yes, I did. Mr. Chavez: When did you implement that plan? Chief Exposito: I did that on the -- I believe it was the 8th ofAugust that we started moving the tactical operations officers into patrol mode. We put them basically on the afternoon shift and on the midnight shift, particularly on the weekends where we had more vacancies. Mr. Chavez: How does this transfer -- or how was it that this tactical transfer plan was going to affect the overtime issues persistent within the department? Chief Exposito: Well, it would decrease the amount of overtime, but there was a cost. And the cost was public safety. Mr. Chavez: Were there particular shifts that were at issue causing particular overtime problems? Chief Exposito: Yes. It was B and C shift, which is the afternoon shift and the midnight shift. Mr. Chavez: Specifically, please identify for the Commission which shifts those are, the time -- ChiefExposito: All right, the -- Mr. Chavez: -- the actual times. ChiefExposito: -- afternoon or B shift starts at 3 p.m. and it ends generally at 1 p.m. [sic]. And the midnight shift generally starts at 9 p.m. and they work until 7 a.m. Mr. Chavez: Were weekends a particular problem? Chief Exposito: Yes, they were. We identified that the problem was more serious on the weekends where we had more vacancies. Mr. Chavez: Now these tactical officers, do they have the same time -- contractual time constraints as patrol officers? Chief Exposito: No, and that's what made us be able to move them at will because the nature of their job is such that since their job is to adjust to where crime is occurring during the times that they're occurring, they don't fall under the same contractual issues that we have with patrol officers, so we could basically move them at will. Commissioner Sarnoff. Can you explain that better 'cause I'm not getting that completely. Mr. Chavez: Sure. Please explain specifically how it is and give us an example of let's say, B shift on Saturday shows up three patrol officers short. Walk through and address to the Commission how the tactical transfer plan will fill those spots. Commissioner Sarnoff. And if you could also explain why a tactical officer is treated differently than a patrol officer, and if it's contractual, tell us, 'cause I'm not familiar with any of this. ChiefExposito: It is contractual. What we do is when officers want to go to the tactical operations units, they agree that -- they understand that the nature of their job means they will be City of Miami Page 34 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 adjusting their hours and their days off based on crime. Commissioner Sarnoff. Does that mean that they are waiving their rights under the contract? Chief Exposito: That's correct. Commissioner Sarnoff. Okay. Chief Exposito: And they're treated different -- a little differently than the patrol officers who -- Commissioner Sarnoff. Do they --? Chief Exposito: -- have to be notified six days in advance to change their schedule. Commissioner Sarnoff. Do they literally sign a document that indicate -- ChiefExposito: I couldn't answer that, but they do agree to that and they understand that's the nature of that job. And that's the only way those units can work. If we are going to attack crime when it's occurring and where it's occurring, we have to have that flexibility. Commissioner Sarnoff. Thanks. I didn't know that. Chair Gort: Let me ask you a question. Is this a volunteer or they're being selected by administration? Chief Exposito: No. They volunteer for that assignment. We do not draft people to go there. It's actually a job that a lot of the officers in patrol would prefer to have because it's -- they see it a little bit more elite than just a patrol officer. I mean, that's the way they view it. Chair Gort: Okay. Thank you. Commissioner Carollo: Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: I have a question. But at the same time, are there certain requirements of the officers or additional requirements, let's say, for the SWAT (Special Weapons and Tactics) team or K-9, additional training that they have to go through? Chief Exposito: Yes, we do. One thing that I instituted when I created the tactical operations section and increased the number of officers there, we started doing more specialized training. We do it on a regular basis. We do it monthly, which is something that the regular patrol officers don't get. So they get specialized training and it has to deal with traffic stops and things that they -- that are part of their job, dealing with gangs, things of that nature. Vice Chair Carollo: Thank you. ChiefExposito: All right. Mr. Chavez: Now, chief going and comparing it or putting it into the five -step problem -solving process, what stage was the tactical transfer plan in as of -- and I'm just going to give you a date -- August 8, 2011? Chief Exposito: Well, we had implemented the plan. We were still monitoring the previous plan, which was the ten-day plan, but we were at that stage. City of Miami Page 35 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: As far as you were concerned, to the best ofyour knowledge, did your e-mail of July 20 comply with the directive given to you that day -- one day earlier that you develop a plan of action? Chief Exposito: Yes. Mr. Chavez: Once you had an opportunity to monitor and get the results of the tactical transfer plan, is your next step to report that to the City Manager? ChiefExposito: Yes. Mr. Chavez: Ultimately, your concern as Chief of Police for the City ofMiami Police Department is what? Chief Exposito: Public safety. That's foremost the issue that's in my mind. Mr. Chavez: As it relates to the overtime overages that still persist in the department, at least as of September 6, this last Tuesday, how is that affecting, to the best ofyour knowledge, in the general terms, the overall budget of the department? Chief Exposito: Well, you know, we still have issues with the overtime, but some of them are -- we're talking about overtime we can't control, like court and some of the other overtime issues. We were affected to some degree, as I mentioned, when word got out that the officers might lose their sick time, and for some reason, some of the officers started using some of their sick time. Andl think that now they've -- that concern has been laid to rest. Mr. Chavez: To wrap up, at any time as it pertains to the reassignments of Officers Roque, Perez, and Brown, did you act consistent with the directive that you hold off on their actual demotions? Chief Exposito: Yes, I did do that. Mr. Chavez: At any time were you insubordinate with those directives? ChiefExposito: No, I was not. I don't have the authority and I did not do that. I did not demote them. Mr. Chavez: The authority you undertook, is it well within the purview of Sections 20, 25, and 36 of the City Charter based on your experience and the common practice within the police department and its routine and customary communications with the City Manager given your 37 years experience with the department? ChiefExposito: Yes, it was. I have a responsibility as Chief of Police and that's what did. Mr. Chavez: At this time, is there anything you'd like to add for the benefit of the Commission? ChiefExposito: The only other thing that would say is that have reason to believe that have been unfairly targeted by the Office of the Mayor for doing the right thing. I have been offered money to leave. I have been extorted. Members of staff of some elected officials have actually behaved inappropriately and possibly unlawful -- in an unlawful manner by creating or crafting documents to assist city managers in firing me. And this was the last straw. The actions that I have taken have thrust me under a magnying glass that can be traced back to October 2010, when the Mayor unlawfully interfered in a lawful police operation involving gambling machines. It just so happens that a lot of the owners of these gambling machines contributed to the City ofMiami Page 36 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 campaign of that mayor. And as such, this has been the situation that I've been facing. I still believe, with all due respect to Mr. Martinez, that that is what's behind all of this. We have a Mayor who's hell-bent on firing me, and the Manager, I believe, has succumbed to the pressure from that Mayor. And that's all have to say about that. Commissioner Sarnoff. Mr. Chavez, I have a question. Mr. Chavez: I yield the floor -- Mr. Chairman, I yield the floor to the Commission. Commissioner Sarnoff. Chief -- Chair Gort: Thank you. Commissioner Sarnoff. -- in this memoran -- I'm sorry, in this e-mail, you referenced three parades. May be very important to this Commission, but I'm not aware that we were bearing the overtime costs associated with these parades. Because if this Commissioner will remember, I asked to waive the cost for the American Parkinson's Foundation event at Peacock Park, and this Commission graciously told me no. And while I do laud the Three Kings Parade, the Martin Luther King Parade, and Jose Marti Parade, the American Parkinson's Association is there to help cure a disease, andl was told no by this Commission. I'm trying to understand how you or the Administration afforded overtime -- andl don't know how much it cost, but you wrote in here hundreds of thousands of dollars -- without this Commission's approval. Andl suspect you would have gotten it. And candidly, I suspect would have voted against it because I would have done what I would call an equal protection analysis and said to this Commission if you can't give the American Parkinson's Foundation police on your budget, so to speak, then how in the world can you celebrate these three parades without our approval? And want to understand how that happened. Chief Expositor Well, the way that it occurred is these parades were approached by the different individuals that are actually sponsoring these parades, and they asked for a budget on how much money we're going to spend. And we send them a budget telling them this is how much money we will need to be able to do this. In some of the cases, they've said they had the blessing of the Mayor's office and therefore they weren't going to pay for the costs. In other cases, they just don't pay. After the event is over, it's going to be difficult to get that money paid. And in some instances, that's what we were being told. And the Manager at the time said go ahead and send the officers to handle the parade, public safety at those parades. Commissioner Sarnoff. I don't understand. And maybe I have to ask the Administration. How is it when I come to this Commission andl want to have a foundation that's there to cure a disease and my Commissioners -- andl respect their position. We were in a financial crunch. And the answer was no. How is it now that these -- and it may very well be this Commission would have voted for it, but it wasn't presented to us. How did that happen? Mr. Martinez: These were approved by the previous managers. I -- you know, I don't have any direct knowledge of your request that was denied and some that were approved. I don't have any Commissioner Sarnoff. But why do I have to come to the Commission, and why do some parades or some issues not have to come to the Commission? Mr. Martinez: I don't know. They should all come to the Commission. Chair Gort: They all have to come to the Commission. Commissioner Sarnoff. So how did these not come to the Commission? City of Miami Page 37 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Maybe -- I don't know, maybe it was tradition up to that point. And from this point on we're coming to -- Commissioner Sarnoff.. And whenever we don't know what to say in this City, you know what we say? Past practices. That's the answer. And how well have we done with past practices. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: Commissioner Sarnoff, I agree with you 100 percent, you know. I agree with you 100 percent, and that's part of the culture that have seen quite a bit. I have tried to change, and you're right. You're exactly right. Wherever there's no answer, that's what we've done in the past. I have to go through some of my e-mails because I remember requesting information with regards to how we were going to pay for police services and so forth. And think of this also, public safety. If an event happens, like the Chief said, you know, the event just happens and then we don't get paid for it. Well, if we're -- if we know it's happening, realistically, are we going to say, well, you haven't paid us; therefore, there's not going to be any police presence. No. We have a duty to have police officers there. But you're right. And you know, this is such a healthy discussion, you know. This is such a healthy discussion because the truth of the matter is we start seeing how everything is operated and realistically, it's not always done the same. And it's -- when it's not always done the same, it's not fair. As a matter of fact, one of the things thatl was going to do when we have budget hearings was discuss -- and that's why I go line item by line items because I want to see if this year, if this Commission so chooses, we put those parades on our budget so they're there, so there is that word that before it was used a lot and it's being forgotten andl keep bringing it up, transparency, because we do need transparency. So you are right. I am in agreement with you. And the truth of the matter is that I'm sure in the past, it's been done. The problem is when the Administration feels that they could -- that they should do this, they do it. When they feel they shouldn't, they do not. When they feel they need to bring it to the Commission, they do. When they feel that it's not to their best interest, they don't. I just showed them an example when our auditors were here. We have an additional department that came before this Commission several times. It was not approved by this Commission. Now do we have that separate department? Yes. I mean, I addressed it. I asked our auditors, you know, and they said this was the representation of management. Incorrect. Has anything been done about it? No. And let me be perfectly clear. I'll be perfectly clear why I haven't brought up the issue again, because you know what's going to be the solution, we're going to fire the former acting director because we brought in another director that we choose is better, so I have to now think, well, is it in our best interest to keep the two departments even though it was done erroneously, or should it be like it really should have been done, keep that department -- unless it comes before this Commission as one, but I know for a fact they're going to fire a very, you know, good director that we have. And remember when I spoke about the sacred cows and so forth? And yes, I understand, I'm going to continue to be in the penalty box because I am saying this because we are in an environment that we can't speak up. We need to keep everything hush-hush. So I understand I'm going to continue to be in the penalty box. And when I say penalty box, I mean, realistically, how would any of my colleagues feel if a reasonable request for just an explanation is asked more than a month ago on something that affects District 3? We're talking the NET office. We're talking the commander of all that area. We're talking public safety. And you still don't get a response. You know, I hate to say it 'cause I want to be wrong, but when I mentioned as far as judgment, I mean, it's very important. You know, as a former law enforcement officer, we needed judgment. We needed discretion. That's why one of the main reasons I know it's so important. And Commissioner Sarnoff, you are 100 percent correct. You are 100 percent correct. And you know what, we need to start being fair and bringing everything to this Commission. You know, one of the things that I was going to wait and say later I will say now because I think it corresponds. I really welcome the fact that all of us, including the Mayor, were CC'd (Carbon Copied) on those communications that the Chief City of Miami Page 38 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 sent. First of all, is any communication by e-mail from the Chief to the Manager public records? Commissioner Suarez: Of course. Vice Chair Carollo: It's public records. Chair Gort: Anything (UNINTELLIGIBLE). Vice Chair Carollo: So what does it matter if we're CC'd? You know, I actually -- realistically, I applaud that. I applaud that. That's a breath of fresh air because we are seeing that constantly we're out in the dark. Constantly this Commission is left out in the dark. And we sort of saw that the Administration frowns upon information to this Commission. Why? It's public records. What does it matter if we were CC'd? I applaud it because, realistically, it does affect my district. It does affect District 3. It does affect District 4, you know. And when I get complaints, what's going on with public safety or questions, realistically, I want to know what's going on. I want to know -- I want to be able to answer correctly. And too many times already we are left in the dark and we're starting to show more and more and more examples, like Commissioner Sarnoff just brought up. Why is that? Why is that that some parades are approved, some are not, you know? It's wrong, and it's something that we, as a Commission, need to address. And realistically, in this budget hearing, I expect it to go pretty long, you know. And at the same time, I'll tell you, I am not going to be voting -- or at least you will not receive a vote in the positive from me until receive all the questions that have asked, all the information that need, andl will leave it at that. But the truth of the matter is, Commissioner Sarnoff, I'll say it. I've said it many times already and I'll say it again. You are correct, and we need to change this culture because many of this things, it needs to come to this Commission. And this -- even if it was public records frowning upon you send it to the Commissioners and the Mayor? I -- you know, especially, especially, especially when it deals with very serious issues in our districts, in District 3, District 4 -- I'm not sure if District I -- realistically, what's the harm in us being informed? It's all we're asking. My e-mails to the Manager, all ask, explanations, you know. That's all ask. I didn't receive it. Didn't receive it. Chair Gort: Commissioner Suarez. Commissioner Suarez: Thank you, Mr. Chairman. I agree with Commissioner Sarnoff's issue regarding the parades. I think -- and with the Vice Chairman's characterization of how they've been dealt with. And so I think -- I welcome andl invite the discussion during the budget on each and every one of those items as -- I mean, every year they're essentially the same parade, so it's not like there's a whole lot of change, so we should know, more or less, what to budget for and we should be able to budget for those things. I also agree that you should get your e-mails answered. And I'm just a little concerned that -- on a couple of levels. First, we seem to be turning this into a judgment on whether the Manager or the Administration is doing their job, andl think that's not really the purpose of this hearing, so that's one concern that have. Secondly, I don't think heard anyone express any negative statements about the fact that the Chief had in fact CC'd all of us on the e-mail. I think that's a wonderful -- I agree with you. I think it's wonderful. Vice Chair Carollo: I think the Manager in his statements mentioned -- Commissioner Suarez: I can't imagine what would be anything negative about -- Commissioner Sarnoff.. It was one of his grounds for insubordination. Vice Chair Carollo: It was -- yeah, it was part of his grounds for insubordination. Commissioner Suarez: CC'ing the Commissioners -- City of Miami Page 39 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: That's what he said. He -- Commissioner Suarez: -- on an e-mail? Vice Chair Carollo: You know, I don't want to put words into his mouth, but we could read into the record what he said. He thought it was insubordination that the Chief CC 'd all of us in answering to him. Mr. Martinez: My exact words were please note although the Chief of Police is free to communicate with all Commissioners, copying Commissioners on an e-mail disagreeing with a direct order from the City Manager is geared to undermine my authority in personnel actions. Commissioner Suarez: That's a judgment. Mr. Martinez: And I thought the purpose of that was to weaken -- Commissioner Suarez: That's a judgment. That's your -- Mr. Martinez: Right. Commissioner Suarez: -- judgment. He may think you have bad judgment, but that's your judgment, and don't necessarily agree with that, butt don't think that's necessarily germane either to the counts at issue. Commissioner Sarnoff.. And -- Commissioner Suarez: I think it is a good policy that the Chief of Police would include City Commissioners in all e-mails. That's my -- Vice Chair Carollo: Therefore, he used bad judgment in stating that. Commissioner Suarez: Maybe in stating that, but that doesn't do away with the charge that he has applied here, and we have to look at that evidence -- Commissioner Sarnoff.. I want -- Commissioner Suarez: -- and not get our eyes off the ball. Commissioner Sarnoff.. -- Commissioner Suarez to understand why I'm getting into overtime, because he is apparently being charged with insubordination for creating and not addressing overtime. Andl think it's fair in this e-mail to get into how overtime is being attributed to him. And you know, I'm obviously very upset because I had either the judgment -- misjudgment to bring before this Commission the American Parkinson's Foundation's request to use a park and need police presence and you voted it down, and you did so for economic reasons. Andl have no issues with any of you for doing it because it was a bad time. It was a tough time. Still is a bad time, still is a tough time. However, if you had brought -- this is just my own issue right now -- the Three Kings, if you had brought Martin Luther, if you had brought any of the other issues, I would have debated you fairly andl think honestly. Vice Chair Carollo: Absolutely. Commissioner Sarnoff.. You said no to the -- Commissioner Suarez: I agree 100 percent. City of Miami Page 40 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. -- American Parkinson's Foundation, but for a particular parade, you're going to say yes, andl think that would have been worthy of some -- Commissioner Suarez: Fair. Commissioner Sarnoff. -- news, and we would have formed judgments that would have been fair. But the reason I want to continue on with overtime is because this Chief is being -- in a charging document is being accused of creating, sustaining, and not addressing overtime. Andl want to know how much of the overtime is his fault, how much of the overtime is put on him by the Administration, andl want to broach that with you, Chief because there's another issue I don't quite understand 'cause -- and I've never been able to get a straight answer out of this Administration. You're 54 men down. I've been told that's a good thing because you get overtime, and overtime is cheaper than hiring 54 police officers. So just for today, the Chief of Police answer today -- 'cause I guess you're still the Chief as you stand here. I guess you're suspended, but whatever -- is it cheaper to have 54 cops down and have 54 cops do overtime or can you not run a department that way? Chief Exposito: It is cheaper to pay the overtime because you don't have the benefits and all that 'cause that's already factored in in the officers that you're utilizing. However, you cannot sustain that for a long period of time, and that's why I've been pressing to hire these police officers. Because you can do it for the time being, but after a while, these officers start wearing down, and it's just not the way to run a police department. We need to have appropriate staffing. And all these new buildings going up and the additional people moving in, that's all fine and dandy, but if we don't have the officers to respond to those calls for service, that creates another issue. Commissioner Sarnoff. All right, then I have a question for you. 'Cause I know you andl spoke about this think better than a year ago, andl said, Chief how many cops are you down. And you gave me a number. I don't even remember the number. It was in the 20s or 30s. Chief Exposito: Correct. Commissioner Sarnoff. It didn't seem -- andl said, what are you doing to address it? And you said, I'm dealing with the Administration. Andl said, do you need some help? You said no. I'm -- candidly, I'm dealing with them, andl think some of their issues are legitimate. Why does it take us so long to either hire -- I know what a -- if you want to hire a cop out of the academy, you've got to put him through -- I understand there could be a year process, but why does it take us so long to hire a lateral transfer? Chief Exposito: Well, we were having some issues with ER. And with all due respect to Ms. Pruitt, she came in after all these issues were there. It's not her fault or -- and I'm not trying to lay blame here, but truth of the matter is, the Employee Relations Department is responsible for hiring, not the Police Department. And as you've seen, the documents are there approved by the City Manager, and there's a host of other e-mails where the different city managers, I've sent them e-mails saying, listen, I'm concerned about staffing, and it's not happening. Maybe the Employee Relations Department can explain it, but part of the issue was there were individuals within the Employee Relations Department that are anticipating what the Justice Department is going to tell us, andl don't think that that's the way you do business. They are going to play Carnac and they're going to tell us what the Justice Department is going to tell us if we do something in a certain way or we do it in a different way. Another thing that has happened is that we haven't received all the information. When we go ahead and we prepare these registers to hire people, we need to have all the facts as a police department because I don't know about hiring people because I don't do that, and we're not getting all the facts until we're already involved in the process and we can't do anything about it. This register that we're working on right now to hire the first 16 police officers, because we weren't informed, we had to process City of Miami Page 41 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 every single applicant in -- that put in for that job before we could hire the first police officer. That's not the way to do business. And hadl been told that, I would have said let's try another process. But those are some of the issues that come up. There was another issue with the obstacle course. The obstacle course that we were using was no longer operable. So our recommendation, let's go to Miami Dade and use theirs. Oh, no, their obstacle course -- even though they still have a six-foot fence, just like ours, it's different -- it's a different six-foot fence than ours so we can't go there. So those are just issues that I bring up that we can't control as a police department, so it puts us in a situation where we have to use overtime when I'd rather not. I'd rather hire the police officers and have the appropriate staffing. Commissioner Sarnoff. Thank you. ChiefExposito: Thank you. Chair Gort: Ms. Spence -- Commissioner. Commissioner Spence -Jones: Yes, Mr. Chair. I just have a few questions based upon the testimony. And like I said in the very beginning, for me this is all very challenging only because there's still this cloud of what we're really here for. But because we're in the midst of it, I want to at least make sure that, if nothing else, we operate in fairness and truth. ChiefExposito: Sure. Commissioner Spence -Jones: There were two things that I just wanted to have clarity on, statements that you made, and I'm going to start with the first one, which was accountability. During the City Manager's presentation regarding this issue, he talked about -- he actually underlined here 1' will not be held accountable for the increase in crime. "But yet and still, when I go back to the -- which was on, if I'm not mistaken, July 20 -- but then when I go back to the original -- I guess the response to that would be, Johnny, on August 4, and it basically -- you basically state in there to Beverly that, you know, he will be held accountable. And l just wanted to understand on one note he's accountable and then on another note he's not accountable . Explain that -- Mr. Martinez: Yeah. Commissioner Spence -Jones: I don't know ifI should be addressing it to you. Mr. Martinez: I can answer. Commissioner Spence -Jones: Okay. Mr. Martinez: Yeah. I said in principle, I feel that the director or the Chief should set his own staff and then be held accountable. Andl believe that the Chief being 37 years with the department, the other three officers, I think, have 31 years, 33 years, and 20 years. They've been coworkers for a minimum of 31 years. Commissioner Spence -Jones: Yeah. Mr. Martinez: So he knows the personnel that's involved. Commissioner Spence -Jones: Right. Mr. Martinez: They've been working side by side. It's his people that he put in, and all of a sudden one day he wants to whack all three, and l just want to know cause. So I just wanted to discuss that further. But in principle, I do believe that everyone should put their team in place. City of Miami Page 42 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Andl thought that was his team because he put it in place, and he worked alongside for them for 30-plus years. Commissioner Spence -Jones: Right, but -- Mr. Martinez: So there should be no surprises. And from one day to another they're getting whacked with no explanation, no -- Commissioner Spence -Jones: Right. And that -- and by all means, that definitely not right, so I'm -- andl'm going to ask the question as to -- ask the Chief on that, butl wanted to -- when we talk about accountability, it can't -- because even with the new Administration, andl'm sure you're learning that now -- you've been in the Administration as an assistant City Manager and became City Manager, andl'm sure you've seen a lot of whacking going on. So people -- even though you -- even -- I'm just saying -- okay, so the reality is even if you start off with someone in the very beginning, as time goes on, we make adjustments. So I don't see that as being like an issue whether or not -- let me finish, okay -- you know, he should -- he's not being accountable. I just wanted to understand your statement if clearly you're telling him on one note that, you know, he's accountable for something 'cause honestly, if someone told me I was accountable for something -- Mr. Martinez: Well -- Commissioner Spence -Jones: -- let me finish, okay. If someone told me that was accountable for something and then sooner or later or as time goes on, then they switch out and do something different and say, well, you're not accountable for that, I just -- I could see where the confusion could exist, but I just wanted to understand it -- and you explained to me your rationale, okay. The other thing that I wanted to ask -- and then I'm -- I have some key questions for the Chief but just based upon the testimony. Chief you made a statement here that the plan that was asked for to be implemented was the brainchild of FOP. ChiefExposito: Yes. Commissioner Spence -Jones: I don't know if that -- did that come from a conversation that you might have had with Johnny? Chief Expositor Yes. We had a meeting that the Manager set up with Assistant Chief Blom and myself attended. And at that meeting, this plan came out, andl told the Manager I would take a look at the plan. But my concerns right off the top, just by looking at the plan is the fact that we're depleting the number of officers in the tactical operations section, which as I mentioned before, those are the guys that are out there picking up criminals, dealing with violent crimes, and when we start taking people out of there, there goes my three prong approach. It becomes a two -prong approach. Andl mentioned that to the Manager, but he kept insisting that we do this, and the culmination was this e-mail that he sent me. So I said, that's fine, we will do that, but my judgment tells me this is a mistake and, therefore, I should not be held accountable for that, andl believe in that. If there's something thatl do, I am responsible for it andl will take blame for it, but if it's something that I know is wrong, I've stated that it's a wrong decision to make and he insists that I implement it, I cannot be held responsible. I didn't say he was going to be held responsible. I just saidl wasn't going to be held responsible. And he took offense to that. I don't understand why, but he did. Commissioner Spence -Jones: Okay, so that definitely cleared up the issue on -- so, Johnny, I'm actually confused on why you say -- the issue of him being accountable and he's accountable today and not accountable tomorrow. But anyway, I'm going to move on to something else. On -- just real fast on -- you know, 'cause that leads me to a section -- andl want actually the City Attorney to clear this up for me because, you know, I have been beating up myself for the last City of Miami Page 43 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 week, you know, 'cause I really want to do what's right no matter what. Andl do understand the challenges around this whole issue, but when I look at Section -- I believe it's Section 25 -- and maybe this is what Commissioner Suarez was talking about, the Charter is just outright confusing at times. But it says, you know, in Section 25, Division of -- Supervision and Divisions ofPolice andFire, it basically gives the authority to the Chief and the Fire Chief to have the right to power and suspend any of the officers or employees. I'm -- again, here's another thing, the accountable -- what you can be accountable for and not be accountable for. But I'm trying to understand then why it turns around, Julie, in Section 26 that asserts the Chief has now violated it because the Manager has the right to suspend or not -- to oversee the issue. So how can it say one thing in Section 25, like you have the right to do it, right, but then in another section, I believe Section 26 -- andl may be having the two things mixed up. I want to have clarity on, you know, why are the two things different. Ms. Bru: Commissioner, and other members of the Commission, the section that we need to look at to establish the relationship between the Chief and his duties and responsibility and the role that the Manager plays is really -- and Maria can hand it out -- it's Code Section -- City Code Section -- Commissioner Spence -Jones: Okay. Ms. Bru: -- 42-3. Commissioner Spence -Jones: Right. Ms. Bru: She's going to hand it out so that you could read it for yourselves. I know that the Charter has a Section 25 and a Section 24. And although they still appear in the Charter, there's a question as to whether or not those sections are still in effect because under the Charter, the Commission can by ordinance establish departments. And when that happens, the departments are established and the director's duties and the mission of the department is set forth in the Code, not the Charter. And what happened in the City ofMiami was that originally the department -- there was a department called the Department of Public Safety -- Commissioner Spence -Jones: Yeah. Ms. Bru: -- and it included Fire and Police. And then subsequent, by ordinance, the City of Miami Commission established a division ofPolice and a division of Fire separately. And therefore the Charter references to the Department of Public Safety and Police andFire there probably are -- is not in effect right now and you need to look at the Code. AndMaria's going to hand out Section 42-3, and it does say that subject to the supervision and control of the City Manager in all matters. So the director of the Police Department administers the affairs of the department, which includes immediate direction and control of the police force, and he is charged with the responsibilities for the prevention and control and suppression of crime in the city. However -- but it is subject to the supervision and control of the Manager in all matters. So ultimately, even though he has the right to undertake personnel actions and determine how he wants to run the department, he is still subservient to the control of the Manager, and that's how the Code addresses it in that section. Commissioner Suarez: Mr. Chairman. Commissioner Spence -Jones: Okay, so this -- I'm sorry. I just have a few more things. So, Johnny -- Mr. Manager, so -- I'm just curious -- would you agree that the Chief ofPolice has the latitude to make those kind of decisions? Mr. Martinez: Yes. City ofMiami Page 44 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Okay, you -- Mr. Martinez: Yes. Commissioner Spence -Jones: So you would agree that he does have --? Mr. Martinez: Yes. Commissioner Spence -Jones: Okay. Mr. Martinez: But wanted -- Commissioner Spence -Jones: Okay, so -- but your concerns with these particular -- because you andl actually had a conversation about this, and I'm sure you remember. That was our first date, right? And -- Chair Gort: That was a nice date. Commissioner Spence -Jones: Our first date. Mr. Martinez: I'm an easy pickup. Commissioner Spence -Jones: Andl asked you, you know, I said, Mr. Manager, I'm trying to understanding, you know, what's the reasoning behind, you know, you making decision -- 'cause you told me even in the meeting, you said, well, Commissioner, you know, I went to -- he did come to me -- honestly, he did come to me and say to me that he was going to be making some changes and that -- wanted to know ifI -- he had my approval to do that, andl told him, yes, that basically it's his department. He can make that decision as long as it didn't come on the outside. And you admitted to me in that meeting, you said, well, but -- andl allowed for him to do it. It wasn't until later on I found out the three people that he was doing this with I had a issue or concern with. I don't know if people had called you about it. I don't know what the issue was, but -- andl said to him, I said, well -- I said to you, Mr. Manager, then I'm not -- I'm confused because if you were okay with him making the decision and you told him as long as it didn't come out of -- from outside of the department, right, that he could do it, then what's changed from the meeting you guys had to -- and then even -- andl love some of the officers that are associated, you know, with the demotion, so I'm not trying to hurt either one of them, but I want to be fair. So then my question became, well, why did you have an issue with these three. And you do recall you didn't have an answer? Mr. Martinez: I don't recall that you didn't have the answer, but I'll give you -- Commissioner Spence -Jones: Yeah. Mr. Martinez: -- that answer now. Commissioner Spence -Jones: Okay. Mr. Martinez: One, the Chief did approach me. He said, Johnny, I'm restructuring. There's a retirement. Commissioner Spence -Jones: Right. Mr. Martinez: I'm going to move -- promote somebody here, move this one over, and he showed me a little diagram, and then very casually mentioned that there was a demotion involved. I thought the demotion was just a low-level support position. I didn't pay much attention to it. City of Miami Page 45 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Right. Mr. Martinez: I called Beverly Pruitt, as he said, and asked her to cooperate with the Chief to get his personnel actions -- Commissioner Spence -Jones: Okay, can we stop right there? Okay. Because I believe -- both you guys were in the room together, right? Mr. Martinez: Yeah. ChiefExposito: Um-hmm. Commissioner Spence -Jones: Okay, and you called Beverly? Mr. Martinez: I called Beverly. Commissioner Spence -Jones: Okay, 'cause the Chief just testified and just put on the record that he communicated -- I'm assuming it was those particular people that you were demoting? ChiefExposito: Yeah, yeah. Mr. Martinez: No, he did not. At -- when we were in the room, he did not. Commissioner Spence -Jones: Did not. Okay, but was that communicated to Beverly -- ChiefExposito: Yes. Commissioner Spence -Jones: -- who they were? Mr. Martinez: See, I -- well, with the Chief -- when I'm sitting with the Chief I called Beverly andl said make sure that his personnel actions go smoothly 'cause he -- you know, he needs this done. Commissioner Spence -Jones: Right. Mr. Martinez: Andl hung up. A little while later she called me back and said, by the way, are you aware that there's a demotion of three high-level people, andl said, no, I don't. And then she gave me the names and stuff andl said, okay, hold off on that 'till meet with the Chief again and get cause. I wanted to see if he had -- if there was a history of -- Commissioner Spence -Jones: Yeah. Mr. Martinez: -- personnel actions or demote -- you know, just a history of performance. Commissioner Spence -Jones: Did you get those -- did you get --? Mr. Martinez: No. Chief Brown -- or Assistant Chief Brown brought me his performance evaluations, which were all good. Commissioner Spence -Jones: No, but I'm saying did you officially request it from the Chief to provide you with why you were doing it? Mr. Martinez: Yeah. I sat -- yeah. I spoke with him. I said need cause. The same standard that's being applied to you, I want to apply to the high-ranking officers. City of Miami Page 46 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: So you put it -- so it was more of a verbal conversation? Mr. Martinez: Yeah, verbal. Commissioner Spence -Jones: Okay. And Chief then it comes back to you. Did you provide him what -- ChiefExposito: I think there's a little bit of -- Commissioner Spence -Jones: -- the response to --? ChiefExposito: -- a problem here, and I'll tell you what the problem is. Commissioner Spence -Jones: Okay. I just want -- 'cause I really believe that that's the heart of this particular issue because he's saying that you guys had the discussion about what actually happened. So I just want to be clear on what was your follow up on that. Chief Exposito: I'm going to try and refresh the Manager's memory here as to what occurred. My first meeting with him was on August 1. This did not become an issue until August 4, three days later, not that afternoon, as he just tested to, that he said he called Beverly and Beverly told him that -- who the names were and that he had issues with that. No. The issues came up three days later or four days later. Almost four days later is when the issues came up. It wasn't that day. Commissioner Spence -Jones: Why do you feel, Chief they came up three days later? Chief Exposito: I don't know if it was the individuals involved or what the issue was. But the initial conversation between he andl -- and I'm going to remind him that we had a meeting just prior to that with Luis Cabrera, and right after that meeting was when we had the conversation about the demotions and filling the vacancies. It wasn't on the 4th. The 4th, we had a follow-up conversation, but the initial conversation where he called Beverly Pruitt was on the 1st. And if he checks his cell phone records, he's going to find there's going to be a telephone call from him to Beverly Pruitt around 9 o'clock that morning, and it had to do with those demotions. It wasn't on the 4th. Andl want to make sure that he understands that because he's saying something differently than the way I remember it. Commissioner Spence -Jones: Okay. So whatever the -- Did you ever communicate, Chief to him what your legitimate concerns were with the demotions? Now we all agree -- I just want to be clear. We all agree that this was not a demotion. Chief Exposito: I explained to -- Commissioner Spence -Jones: I want to make -- we all -- do we agree that this wasn't a demotion? Mr. Martinez: For all practical purposes, what happened afterwards is a demotion. Commissioner Spence -Jones: But he -- Did their pay change? ChiefExposito: No. Mr. Martinez: No. I -- and I stated that. Commissioner Spence -Jones: Did their position change? City of Miami Page 47 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 ChiefExposito: No. Commissioner Spence -Jones: Did their status change? I think that's what you meant. Mr. Martinez: Their status. Commissioner Spence -Jones: Their status changed. Chief Expositor They were reassigned to another responsibility. That's all -- Commissioner Spence -Jones: Okay, so -- ChiefExposito: -- you know. Commissioner Spence -Jones: -- when you say status -- I want to be clear on what you mean by status. Mr. Martinez: They're sitting at a desk doing nothing. Commissioner Spence -Jones: Okay. Chief Expositor Well, if they're sitting at a desk doing nothing, then they're not doing their job because they were reassigned to other responsibilities. Mr. Martinez: (UNINTET,TIGIBT,F). Chair Gort: Excuse me. Commissioner Spence -Jones: Okay, okay, okay. Chair Gort: Excuse me. Mr. Martinez: I mean, come on. Chair Gort: I don't want an argument. There'll be back and forth questions. You'll get a chance to answer. You'll get a chance to rebuttal and you all will. Let's go through the Commissioner and through the Chair. ChiefExposito: My apologies, Commissioner. Chair Gort: I'm sorry, Commissioner. Commissioner Spence -Jones: Sorry -- Chair Gort: Go ahead. Commissioner Spence -Jones: -- Mr. Chairman. I just -- I wanted to be clear on the communication. And then I'm going to close out on these two things. So just real fast, I just wanted to really -- there's two -- one more thing that I just wanted to ask, Chief. You mentioned the issue around communicating the staffing -- your staffing concerns. And when I look at your time frame -- I've been sitting here trying to pull it all together. It seems -- ChiefExposito: Right. City of Miami Page 48 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: -- as though, you know, one of the things that Mr. Manager mentioned was he never got a plan, like never received a plan. It wasn't a issue with overtime, right, Mr. Manager? It wasn't a issue of overtime. It was an issue of him not presenting a plan to you in a timely manner. Mr. Martinez: Correct. Commissioner Spence -Jones: Okay. Chief Exposito: Well -- Commissioner Spence -Jones: Okay, right, so -- ChiefExposito: The plan is exactly what wrote on the e-mail. As requested, I will make the personnel changes you cited in your e-mail. That is the plan. Commissioner Spence -Jones: Right. Chief Exposito: I am following the plan that he provided, which is what I did. When I -- before I went on vacation, I had a meeting with Assistant Chief Blom, who was going to be my acting Chief of Police, and with Executive Assistant Al Vega, and we discussed it. We came to an agreement that we would go ahead and go forth with the plan, but these plans, as I mentioned, you have to actually sit down and see how you're going to do it, and that's why it took a little bit of time. We went ahead and implemented that plan and it was implemented. That Monday when I went on vacation, we implemented that plan. And you can hear testimony from Assistant Chief Blom. He will vernj, that, as well as the Senior Executive Assistant Al Vega. I followed through with his request. I never did -- I -- if you read any of these e-mails, I never say I will not follow your orders, I will not do this. The only thing that he took exception with -- andl still believe -- andl strongly believe that is ifI have to implement someone else 's plan who I know is going to be detrimental to my police department, I will not be responsible for it, andl still believe that. Commissioner Spence -Jones: Okay, and in closing -- and I'm going to turn it back over to the Chair -- why did you -- why, Chief do you feel -- why did you feel that it was necessary for the demotion for the three officers? Chief Exposito: You know, as I explained to the Manager that day, the Chief of Police does not need a reason to rollback people that are members of his staff because they're his staff. Commissioner Spence -Jones: I know that you don't -- ChiefExposito: Right. Commissioner Spence -Jones: -- but I'm asking you, andl guess the Commission -- Chief Exposito: I really don't think that I want to get into that in a public forum because some of it has to do with investigations that we cannot discuss here, and that's one of the reasons why I don't really want to get into that. But beyond that, the Chief of Police does not need a reason to roll back his staff. These three individuals were promoted by me. They would have been in their civil service position hadl not promoted them. So, you know, you reassess your staff. You see if things are running the way you want them because I have a philosophy, and ifI see that they're not meeting my needs to make sure that that philosophy goes forth, then I make the changes and that's what I -- Commissioner Spence -Jones: But did you tell your boss that there was some sort of investigation? Did you give him any reason --? City of Miami Page 49 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: I gave him some information. I didn't give him a lot of information 'cause I can't. Commissioner Spence -Jones: Okay. Chief Exposito: I can't share that type of information with him. And he -- and told him that before on -- with even other conversations that we've had that I've told him I can't share that type of information with you because it's an ongoing investigation. Commissioner Spence -Jones: Thank you, Mr. Chair. Chief Exposito: Okay. Chair Gort: Thank you. Commissioner Suarez. Commissioner Suarez: Mr. Chairman. Madam Attorney, I have a question. And this goes to kind of some of the statements that the Chief made and my interpretation of the Charter. And I know that it's somewhat confusing 'cause there isn't a director ofPublic Safety and that is kind of a vestige of what is, in essence, a very, very old document. But it does say pretty specifically in Section 25 that the Chief of Police shall have the right and powers to suspend any of the officers/employees in their respective division who may be under their management and control for incompetence, neglect of duty, immorality, drunkenness, failure to obey orders given by proper authority, or for any other just and reasonable cause. My understanding is that's essentially the same standard that the Chief has. So I think -- andl remember -- I recall a conversation with the Manager at the time where -- when this all was ongoing. He said to me, I simply want to make sure that the cause that is presented for these demotions meets the standard that the Chief himself has to abide by. So it seems to me that even though it has to be, in this particular case, certified to the director ofPublic Safety, which doesn't exist, there is a City Manager who is the Chief of the -- you know, head of the -- the boss of the Public Safety director that doesn't exist, so logically you would think that any kind of charges against an officer would be given to the Manager, who would act in that capacity since that position doesn't actually exist, because the Manager is the superior, you know, employer of all employees in the City of Miami on the basis of what the Charter says. So that's where I have a little bit of a discrepancy with the way that the Police Chief characterizes his authority and his power to promote or demote without abiding by the standard. Ms. Bru: I think it's also clear -- and Maria, if you want to at this time also -- clearly, under Section 16 of the Charter, it is the City Manager who appoints and removes -- Commissioner Suarez: Exactly. Ms. Bru: -- except as otherwise provided -- for example, in this case -- Commissioner Suarez: Right. Ms. Bru: -- he doesn't 'cause you're the one that removes the Chief. But other than the Chief it is the City Manager who appoints and removes all directors of the departments and all subordinate offices -- officers so -- and employees. So really, technically, any personnel change that involves any kind of appointment, removal, suspension, whatever it is, it's really ultimately the Manager's decision. Commissioner Suarez: Yeah. And just elaborate a little bit on that, Section 15 says the Manager shall be the head of the administrative branch. Section 15 also says that the Manager shall be responsible for the administration of all units of the city government under the City Manager's City of Miami Page 50 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 jurisdiction. Section 16B says the Manager shall have the power to appoint and remove, as you just mentioned, except as otherwise provided in the Charter, all directors of the departments and all subordinate officers and employees of the departments in both the classed and unclassified service. The City Manager also has the power to exercise control over all departments and divisions created herein. I believe it also extends to -- I believe it's in Section -- bear with me a second. Ms. Bru: Also Section 20 that you have a copy in front of you now. Section 20, it talks about the director serves -- Commissioner Suarez: Each director shall serve until removed by the City Manager, and until successor has been appointed and qualified, shall conduct the affairs of his or her department in accordance with the rules and regulations. Right. So, I mean, it's pretty clear to me that the responsibility, the ultimate responsibility for making employee decisions rests exclusively in the City Manager. Would you agree with that opinion? Ms. Bru: That -- in the scheme that we have in the City ofMiami, it's unquestionably ultimately the responsibility of the Manager. Commissioner Suarez: So let me just follow that up with a question. If one of the subordinates of the City Manager, for example, has a difference in philosophy, has a difference of opinion, and the City Manager says, my opinion is X, 'does opinion X'govern or does opinion Y'govern, the one given by the subordinate employee? Ms. Bru: The --I guess if you're talking about subordinates of the Chief of Police within the Police Department, again, you -- Commissioner Suarez: I'm talking about all employees. Ms. Bru: Well, it is the Manager -- Commissioner Suarez: Right. Ms. Bru: -- who has the control over all the employees. Now, obviously, those employees that are in the classified service have certain rights to appeal any action of the Manager, any disciplinary action to the Civil Service Board. Commissioner Suarez: Right. Ms. Bru: The employees who are in the unclassified service, they serve at will, and it's up to the Manager to determine whether or not they continue to work in the City. Commissioner Suarez: Let me ask you another question. Suppose there was a difference of opinion as to what was in the best interest of public safety and the Manager had one opinion and the Chief had another opinion, whose opinion governs? Ms. Bru: Again, it's the -- the Manager is who controls. Commissioner Suarez: Thank you. Mr. Chavez: Mr. Commissioner, since we're talking about legal opinions -- andl know that this is more of a quasi-judicial proceeding in that regard -- I would like to venture an answer to that question as an attorney practicing in this community. Chair Gort: Go ahead. City ofMiami Page 51 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Ultimately, what you're discussing or the powers of the City Commission are under Section 16 discuss what his control is and his appointments. But in order to determine who can be removed for cause or without cause, you have to go to Section 36. Now under Section 36, there's two provisions. It discusses classed and unclassified. And when you go down to Section 3602, Power of Suspension, Removal, Fine, or Demotion, nowhere in that section does it indicate that an unclassified employee requires cause for removal. It specifically says an officer or employee in the classified service may be removed, suspended, fined, laid off or demoted by the City Manager or head of department which such person is employed for any cause which will promote efficiency. And it goes down to say that it requires cause. But there is no synonymous provision anywhere in the Code that requires cause for the demotion of an unclassified personnel. All that Section 16 discusses is the procedure that the Chief discussed to you earlier, whereby, hey, I want to appoint T, U, V, X, Y, Z. Okay, process it through ER, signs off. I want to demote so on and so forth. And as long as it's an unclassified provision, according to the City Charter, which is effectively the Constitution of the City, that must be strictly construed. If you want to amend the Charter to require cause for the demotion or roll back of an unclassified employee, so be it. But that's not the issue before you today. The issue before you is whether or not Section 36, consistent with Section 16, requires cause for an unclassified provision, and obviously some may disagree. Commissioner Suarez: Yeah, and do. And no -- Chair Gort: Thank you. Excuse me. Wait a minute. Mr. Martinez: Mr. Chair. Commissioner Suarez: -- I'd like to -- 'cause I -- Mr. Chair, I'd like to be recognized because he's -- Chair Gort: Commissioner Suarez has the floor. Commissioner Suarez: Yes. I disagree on a multitude of different levels. First, I thinkl agree with your -- the way that you read Chapter 36 of the Charter, andl agree that it's silent on most unclassified employees. But Chapter 25 is very specific on all employees that happen to be police officers, so I would argue that Section 25 would govern because Section 36 is silent on that issue. And Section 25 is very, very specific, stating -- and I'll repeat it again -- that the Chief ofPolice shall have the right to power -- and power to suspend any officers and employees in their respective divisions who may be under their management and control for incompetence, neglect of duty, immorality, drunkenness, failure to obey orders, et cetera, et cetera. And to be honest with you, that's not even really the main issue. The main issue is that the City Manager has the right and authority to demand that standard anyways, because the City Manager is the boss, for lack of a better word, is the person in charge of the Chief ofPolice, so he can demand any standard, whether it be, you know, in the Charter or not. I mean, I suppose he can demand any kind of cause as a basis for allowing that decision to go forward because he has the ultimate authority as to whether any employee, subject to, of course, the civil service rules, is demoted, fired, et cetera. Mr. Chavez: IfI may. Chair Gort: Thank you. Excuse me. Mr. Chavez: If you read -- Chair Gort: I'm not going to go back and forth between two attorneys. You can take hours -- City of Miami Page 52 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: I must -- Chair Gort: -- arguing the same -- Mr. Chavez: I concede that, Mr. Chairman. Chair Gort: -- issue. We can spend hours. I think -- Commissioner Suarez: Why don't we ask our City Attorney if my interpretation of the Charter is correct? Ms. Bru: You know, I don't disagree with counsel at all, but we're not talking about whether or not an unclassified employee can be suspended, disciplined, demoted for cause or without cause. An unclassified employee -- and certain members of his staff were unclassified by virtue of the appointments that they held -- can be dismissed for any reason. They are considered at will. It is the classified service that has certain rights that have -- that inure to them under the civil service rules. So the issue here is not whether or not the Chief could demote or take some other kind of action against a member of his unclassified staff. The issue is whether or not the Manager can demand an explanation -- Commissioner Suarez: Of course. Ms. Bru: -- an accountability, and clearly, he does. Under the Code, under Section 42-3, he supervises and controls the police department in all matters. ChiefExposito: Mr. Chairman, ifI -- Chair Gort: Thank you. Chief Expositor -- may. I'd like to say something about that. When I was served with this suspension letter, the last words I had with Mr. Martinez was whether I come back as the Chief of Police or you appoint a new Chief of Police, do not handcuff that person. You have to allow them the latitude to pick their staff because doing so, if you handcuff them, you're doing a disservice to this community, and the department will not operate the way that that Chief of Police wants to operate that department. It's no different than any other interference on the part of the Manager. He doesn't have the -- Commissioner Suarez: Mr. Chairman. ChiefExposito: -- expertise to do that. Commissioner Suarez: Mr. Chairman, I have to interrupt. Chair Gort: Chief I agree with -- Commissioner Suarez: I have to interrupt. You have to allow me to interrupt on that. Chair Gort: Go ahead. Commissioner Suarez: And this is -- this goes to the crux of the matter. I respect the Chiefs opinion and it's logical. It makes absolute sense that the person who is an expert would be the one that would make the decisions. Unfortunately, that's not the way it works in our Charter. You don't have that authority. ChiefExposito: But I didn't demote them. City of Miami Page 53 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: You don't have the authority -- ChiefExposito: But I didn't demote them, and that's the issue here. Chair Gort: Excuse me. I'm not going to have -- Commissioner Suarez: You don't have the authority to -- Chair Gort: -- back and forth. Commissioner Suarez: What you just said, you don't have the authority. You can disagree with the Manager. You just don't have the authority impose your will. ChiefExposito: But -- Chair Gort: Commissioner Suarez, ifI may. I'm not going to have debate back and forth. I mean, there's questions and answers that has to be done. Andl understand what you're stating and you're right. A lot of times -- but a lot of times people when they accept certain jobs accept certain conditions to go with the job and then they don't want to comply with those things. Yes, sir. Commissioner Sarnoff. The City Attorney gave us only one part of Section 36. Could you -- and I happen to have the full Charter up here, so I was trying to read and see why she didn't give us the section you were readingfrom. Could you just direct me to the part that you're readingfrom? 'Cause I think the section you're readingfrom is « and it's a big, long paragraph. Mr. Chavez: Yeah. And what's important to point out, Commissioner Sarnoff, which is going to be my response, Section 25, third full paragraph, actually says the employee shall be allowed the same appeal procedure as set forth in Section 36(2, and 36(2 is a limitation on classed employees. So you got to read the two sections in tandem, not individually. This is the Constitution of the City ofMiami. Commissioner Sarnoff. But you're reading « and you're readingfrom a certain section of it. Mr. Chavez: Powers -- Commissioner Sarnoff. And l just couldn't keep up with you. Mr. Chavez: I'm so sorry. Commissioner Sarnoff. No, it's all right. 'Cause I expected the City Attorney to give us what we needed, and we didn't have 36(2. Mr. Chavez: Thirty-six 02 states in pertinent part -- Commissioner Sarnoff. Just tell me where you -- Ms. Bru: With all respect, Section 36 is not relevant here, Commissioner. We're not dealing with a classified employee. We're dealing -- and first of all, the issue here is not whether or not these three individuals could be demoted. That's not the issue. And they were not classified employees. And furthermore, Section 25 of the Charter -- Commissioner Sarnoff. Yeah, but what I'm hearing -- City ofMiami Page 54 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Ms. Bru: -- is not in effect. Commissioner Sarnoff.. -- you say is that it's okay for him to demote or to change the status of an unclassified employee. Chair Gort: Yes. Ms. Bru: That is correct. That is correct. Commissioner Sarnoff.. Okay, so now that's not even an issue anymore. Ms. Bru: Right, right. Commissioner Sarnoff.. This Chief had the right, under your opinion, to change the status of an unclassified employee. Ms. Bru: He does, subject to the control and supervision of the City Manager. Commissioner Sarnoff.. Well, let me ask you this. Does the City Manager have -- ifI want to -- Where's Chris Zacarias? 'Cause I want to fire him right now. Can the Manager stop me? Chair Gort: No. Ms. Bru: There's a section in the -- there's a separate section that deals with the staff that has been assigned to the City Commissioners. And if you want to, I'll read it to you right now. Commissioner Sarnoff.. Well, it's an ordinance, is it not? Ms. Bru: Would you like me --? It's an ordinance that -- Chair Gort: Yes. Commissioner Sarnoff.. No. I wrote the ordinance, andl knew the answer that you were going to give me. But how does that serve in conjunction with the Constitution and Charter? I mean, there's two Commissioners on this dais with me who were here -- Spence -Jones andl think Gonzalez is in the audience -- when I thought it was important that the City Manager not have the authority over Commissioners' staff. And my question, though, is -- I always thought the hierarchy in the City ofMiami was the Charter was our Constitution, the ordinances were the laws, and the resolutions were minor laws, if you will, smaller laws. And my question is, ifI read the Constitution, it says that the Manager shall have control over my employees. Am I wrong on that? 'Cause they're an employee of the City. Ms. Bru: Commissioner, the provisions that we have adopted -- andl guess you were instrumental in providing for the language for that section that deals with the aides to the Commissioners -- was done, ifI may say so, by stretching a little bit the concept that is provided for in the Charter, but it was done with the justification that the staff that works for elected officials should be unquestionably loyal only to the elected official. Otherwise, you would not be able to perform your duties in the manner that you've been elected to because you would have your staff working for the Manager and yet the policies and confidence and loyalty has to be only to you. And that's why we carved out a definition in the ordinance that describes what the universe among classed employees are in the City -- Commissioner Sarnoff.. No, I understand. Ms. Bru: -- to deal with those individuals that work for the Commissioners. City ofMiami Page 55 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. But if the Manager chose to fire Chris Zacarias right now -- Chris, raise your hand so you can be part of this record. Chair Gort: I'll second that motion. Commissioner Sarnoff. If the Manager chose to fire Chris Zacarias right now, could he not cite Section 25 -- no, he wouldn't use 25. He would use 36(2 at some point, and could he not say that as a result of this being in the Charter, it supervenes and supersedes the ordinance? Ms. Bru: Commissioner, I would have to look at the issues. When this came up, we looked at it very carefully and the ordinance stands. We justified it on the basis that I've just described. Is it inconsistent with the Charter? May very well be. If you take a very close look at it -- Commissioner Sarnoff. So -- Ms. Bru: -- it may be. Commissioner Sarnoff. -- let me ask you a question. Do you have first assistant City attorneys? Do you have somebody just below you? Ms. Bru: Yes, I do. Commissioner Sarnoff. Who are those people? Ms. Bru: All the attorneys are subordinate to me. Commissioner Sarnoff. No, I got that. But who's your number one? Ms. Bru: Maria Chiaro -- Commissioner Sarnoff. All right, so -- Ms. Bru: -- and Warren Bittner. Commissioner Sarnoff. -- could the Manager fire Maria Chiaro? Ms. Bru: No, because the Charter specifically, in Section 36, says that all attorneys hired by the City are under control and supervision of the City Attorney. Commissioner Sarnoff. So the Charter, you're saying, is more particular in that area, but couldn't it be persuasively argued that it's more particular in Section 25 as well, subject to 3602? Ms. Bru: Okay, Commissioner, Section 25, if you look at the editor's notes, by virtue of the adoption of the ordinance that established a division of police, has -- Commissioner Sarnoff. But have you read the case ofRosenfelder versus Hutto? Ms. Bru: Yes, I have. And quite frankly, whatever is set forth in Section 25 -- andl really don't know what it is that we're arguing about here -- but whatever is set forth in Section 25 has to be construed in pari materia with the rest of the Charter. And our Charter pervasively grants to the chief administrator of the City ofMiami the absolute and exclusive control over the administrative staff but for in the circumstance of the Fire Chief and the Police Chief who only the City Commission can remove -- who can be removed only by the City Commission. So that is the scheme that we have, andl don't think that we're arguing here about whether or not the Chief has the ability to manage his department. He does, and he has the ability to determine whom he City ofMiami Page 56 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 wants to have as his command staff. He does. What we're saying here and what the Manager has said -- andl don't want to argue on his behalf. That's not my role here, but -- Mr. Martinez: Please do. Ms. Bru: -- what we're saying here is that anything that the Chief does really is subject to the control and the authority of the Manager. So it's, you know -- I mean, and like Commissioner Suarez said, if that's really not the way that you want to run the City because you feel that the City should be run by a professional police department trained in law enforcement that should be able to make all the decisions without having any interference by the City Manager, then we should amend the Charter. Vice Chair Carollo: We will. Commissioner Sarnoff.. So then it's your opinion that a civilian -- Vice Chair Carollo: That's coming. Commissioner Sarnoff.. -- will make paramilitary decisions. Commissioner Suarez: I agree with that. Ms. Bru: It is not my opinion. Commissioner Sarnoff.. That's what the Charter holds. Ms. Bru: It's what the Charter says. Commissioner Sarnoff.. Okay. ChiefExposito: Mr. Chair -- Chair Gort: Yes, ma'am. ChiefExposito: Oh, I'm sorry. Chair Gort: Excuse me. ChiefExposito: I'm sorry, Commissioner. Commissioner Spence -Jones: I just need to get a very straight answer 'cause I haven't gotten it. So was -- were they demoted -- ChiefExposito: No. Commissioner Spence -Jones: -- Ms. City Attorney? Ms. Bru: That is going to be something that you're going to have to decide, but I will read to you the definition of demotion that is found in our civil service rules. And in our civil service rule, we define demotion as a reduction in classification and status. A demotion is used when an employee is found to be unsatisfactory in the employee's higher level or for disciplinary reasons. That is the definition in the civil service rules. Vice Chair Carollo: I'm sorry. Mr. Chairman. City of Miami Page 57 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Yes. Vice Chair Carollo: Madam City Attorney, can you repeat that again? Ms. Bru: Yeah, we're going to hand you a copy of it now. Vice Chair Carollo: And in the meantime, can you repeat that again? Ms. Bru: A demotion is a reduction in classification -- Vice Chair Carollo: In classification. Ms. Bru: -- and status. Commissioner Sarnoff.. So it's a two-part test. Vice Chair Carollo: Right, and that's what I was getting to. Commissioner Spence -Jones: So -- and what -- in this instance, the classification, just so I'm clear, and the status is? Ms. Bru: In this instance, I think you need to direct those questions to the Chief. Commissioner Spence -Jones: In this instance, Chief classification and status is? ChiefExposito: They're still classed as commanders and assistant Chief. That never changed. I don't have the authority to do that because he never signed off on those demotions. That's why I'm saying I never demoted these individuals so I don't know what the issue here is. Commissioner Spence -Jones: No. I just want to go down each one of these lines 'cause I want to be clear what demotion is. And if you're saying the classification part of it, obviously, that's really not true in this instance. So status? I just want to be clear what status -- meaning? Vice Chair Carollo: And is there a clear definition of status? Commissioner Spence -Jones: Yes. Vice Chair Carollo: Could it be status of pay, status --? Is there a clear definition of what status is? Mr. Martinez: I don't -- You're asking the attorney? Commissioner Spence -Jones: Well, I'm -- no. Actually, we want to know what made -- you made -- you're the one that made the determination and -- so you -- Mr. Martinez: I just feel that he circumvented my instructions by relegating them to all desk duty and have no operational or administrative decisions. No one could talk to them. They couldn't do anything. They had to be bypassed and go somewhere else. So I think he circumvented the spirit of what I told him. Don't demote these guys. Leave them in place until you and I continue the discussion. Commissioner Spence -Jones: But where is that in here? Mr. Martinez: What do you mean? City of Miami Page 58 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: I understand -- Mr. Martinez: It's just my opinion that he circumvented -- Commissioner Spence -Jones: That's your opinion and that's your feeling. Mr. Martinez: -- yeah, he was tricky. Commissioner Spence -Jones: And we don't want to operate off of feelings and opinions and beliefs. We want to operate off facts. So I just want to be clear. Classification, we can't -- that's not justified. Status? You don't have an answer for the status part of it, right, Mr. Manager? Mr. Martinez: No. Commissioner Spence -Jones: Okay, so status is out. Now status was the reason why we demoted him, butl want -- what's the rest of the demotion, please? Ms. Bru: It just says demotion is the reduction in classification and status. A demotion is used when an employee is found to be unsatisfactory in the employee's higher level or for disciplinary reasons. Commissioner Spence -Jones: Okay, so is that -- ChiefExposito: But wouldn't that apply -- Commissioner Spence -Jones: -- the reason -- ChiefExposito: -- to civil service? Wouldn't that apply -- Commissioner Spence -Jones: -- under demo --? Chief Expositor -- to civil service and not unclassified employees? Ms. Bru: Again, this is the definition that's used in the civil service rules that is -- ChiefExposito: Right. Ms. Bru: -- applied to the -- Commissioner Suarez: Mr. Chairman -- Ms. Bru: -- classified service. Commissioner Suarez: -- ifI may. Chair Gort: Yes. Commissioner Suarez: I actually agree with the Chief on that construction of -- Chair Gort: You finished? Excuse me, wait a minute. You finished, Commissioner --? Commissioner Spence -Jones: I'm just trying to understand, you know -- I know that Mr. Manager communicated clearly in his opening that no, the demotion didn't take place from the standpoint of them not -- their financial arrangements not changing or their positions not changing; it was their status, meaning they have less responsibilities. That's basically what City of Miami Page 59 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 you're saying. Mr. Martinez: No responsibilities. Commissioner Spence -Jones: Okay, they have no responsibility. But I don't see -- I'm trying to understand where you -- what is the demotion? They're still getting the same pay. Mr. Martinez: Yeah, and said -- Commissioner Spence -Jones: Okay. They have the same position, right, correct? Mr. Martinez: Correct. Commissioner Spence -Jones: So in your opinion they're not doing anything. Where did that information come from? Did that come from the staff members? Mr. Martinez: From the Chiefs e-mail. Commissioner Spence -Jones: Okay, so the Chief -- you assigned them to a desk to do nothing? Chief Exposito: No. That's not correct. And I'm not sure where Mr. Man -- the Manager's getting his information. If maybe he could explain where he's getting his information. Mr. Martinez: I'll read it to you. Effective immediately, section commanders of the administrative division will report directly to the Office of the Chief of Police. Additionally, lieutenants in the Flagami and Little Havana NET service areas will report directly to the South District Patrol. The administration division chief and the commanders of Flagami and Little Havana NET areas will not be consulted in regard to any administrative correspondence or operational decisions. What are they doing? Commissioner Spence -Jones: Okay, so then that comes to you, Chief. What are they doing? Chief Exposito: The reasons that that is in there is for the benefit of the Commissioners so that they understand that these individuals are no longer in their areas and also for the people that have to report to them. But they were reassigned -- andl think that Assistant Chief Blom can clam that since he's the one that had them reassigned, 'cause it was at the time that went on vacation, and maybe he can clam that. But they weren't sitting at a desk, from what I understand. He reassigned them to other duties. Now if the City Manager has information different than I do, then I wish he would share that with us. Mr. Martinez: Maybe they should come up and -- Chair Gort: Yeah, you can call -- Commissioner Spence -Jones: Are we taking testimony from the floor yet? Mr. Martinez: -- speak about what they're doing. Commissioner Spence -Jones: Are we taking testimony -- Mr. Martinez: Why don't we do that? Commissioner Spence -Jones: -- Mr. Chairman, now? Mr. Martinez: Ask them what they're doing. City of Miami Page 60 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Yeah. Commissioner Spence -Jones: Okay. Chair Gort: You can ask. Commissioner Suarez: Can I just make one statement before we -- Chair Gort: Yes, go ahead. Commissioner Suarez: -- do that, Mr. Chairman? Thank you. I agree with the Chief that the demotion definition is for the civil service rank. It's not for the unclassified which is what we're talking about here, so I don't think this definition is particularly -- I think it's helpful. I don't think it's in any way binding. I think there's a variety of different definitions and some of them have the different words as conjoined. Some of them have the different words as an br. "I think our role is to look at the facts before us and decide whether or not we feel that the actions that were taken are tantamount to a demotion. Commissioner Spence -Jones: Right, but with all due respect, Commissioner -- Commissioner Suarez: Sure. Commissioner Spence -Jones: -- Suarez, I totally agree with you, but when he -- when I hear the City Manager tells me -- tell us that he's making a decision based upon demotion and it's the status, and I'm asking, well, what's the stat -- he can't communicate what that is. That's alarming to me. Mr. Martinez: Well -- Commissioner Spence -Jones: That's alarming to me. I mean, we're making a decision on somebody's life in this instance and you can't clearly communicate to me what it's about, because their pay hasn't changed, their position hasn't changed. I'm just trying to understand what has changed. Commissioner Suarez: I think he's -- Commissioner Spence -Jones: The fact that -- Commissioner Suarez: -- yeah, I think he's making the point -- and don't mean to put words in your mouth. But I think he made the point that their duties have changed and that their duties have in fact been reduced and that that is a change in status. So I mean, that's what I got from what he said. Mr. Martinez: And he circumvented our conversation by doing what he did. Commissioner Spence -Jones: But -- I'm sorry, Mr. -- Chair Gort: Yes, go ahead. Commissioner Spence -Jones: Circumvented. That means what he -- did he outwit you, outsmart you? He's indig -- tell me what -- I'm trying to understand what that means. Mr. Martinez: He has them with basically no authority doing -- not doing what they were doing before. I expected them to stay at the status quo. City of Miami Page 61 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Did you communicate you want him to stay -- Mr. Martinez: Yes. Commissioner Spence -Jones: -- at the status quo? Mr. Martinez: Yes. Commissioner Spence -Jones: Okay. Mr. Martinez: Yes. ChiefExposito: Where? Mr. Martinez: And until we further discussed it, 'cause I wanted to reach that level of standard of cause -- Commissioner Spence -Jones: Okay. Mr. Martinez: -- because they had been working side by side with him for the last 30 years. Commissioner Spence -Jones: I gotcha. Mr. Martinez: He knows them. He's used to them. He promoted them. It's his team, and all of a sudden, from one day to another, he wants to demote all three. I want to make sure it's not because they saw him talking to the Mayor -- Commissioner Spence -Jones: Yeah. Mr. Martinez: -- or they saw him talking to Commissioner Dunn or to somebody else. I want to know what the reason is that these people are going to be demoted. That's all. That's all that asked. Commissioner Spence -Jones: Okay. Mr. Martinez: Andl get, well, there's these secret investigations. I can't tell you much. Well, that's the answer it seems around for any time you ask a question. Commissioner Spence -Jones: Okay, I gotcha. Mr. Martinez: Okay. Commissioner Spence -Jones: Just wanted to understand. Chief Expositor You know, the -- you saw the communication here going back and forth. Nowhere does he say he has a problem with me reassigning them. It's been 30 days since this happened, and the Manager still hasn't told me I don't want you to move these guys from where they are. Mr. Martinez: I told you before you did it. Chair Gort: Excuse me. Commissioner Suarez: Mr. Chairman. City of Miami Page 62 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Okay. Chair Gort: Excuse me. Mr. Martinez: I told you before you did it. Chair Gort: City Manager, excuse me. Mr. Martinez: Yes, sir. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: Yes. Commissioner Suarez: Thank you. I think we're kind of getting finally to the crux of the issue here, andl applaud Commissioner Spence -Jones for kind of getting us on point. Andl think you have really identified what the issue is about, whether the conduct was tantamount to a demotion or not. I mean, really, that's really what it's about. I think it's our judgment. That's my interpretation of the Charter. But let me give you what the public perception is of the actions that were taken and all of the information that was given. Miami Herald, Tuesday, August 9. On Monday -- Chair Gort: Excuse me. Hold it, hold it. Commissioner Suarez: Okay, can I finish? You guys want to keep laughing? Okay. By the way, it's not only the Miami Herald so -- two of them are the Miami Herald. Miami Herald, Tuesday, August 9. On Monday, Exposito did an end -run around the Manager, stripping Brown, Perez, and Roque of their supervisory powers. He ordered that officers working under them report to different bosses, leaving the three with their titles and ranks, but without any practical authority. CBS 4, Friday, August 12. Do you guys want to laugh at that one as well? When Martinez did not agree with ChiefExposito's demotion plans, Exposito circumvented Martinez and stripped all three of supervisory authority and assigned them to desk duty. Miami Herald, Friday, August 12. Herald reports that Commander Roque and Assistant Chief Brown filed whistleblower complaints and notes of dispute between the City Manager and Police Chief. The Chief requested the demotions last week, but Martinez said no and asked for justification. So I think there's not just a perception here, but there's somewhat a perception among the media that what actions were taken could be perceived as demotions. So I just wanted to clam that and put that on the record 'cause I thought that was important to state. Mr. Martinez: Chairman Gort. Commissioner Spence -Jones: And Mr. -- I'm sorry. Chair Gort: Yeah. Excuse me. Commissioner Spence -Jones: Mr. Chairman. Chair Gort: Yes. Commissioner Spence -Jones: I'm sorry. And Commissioner Suarez, I'm not going to say anything about the media because the media has never really been a good friend of mine. But I do want to say this. And this is the reason why I was telling you in the very beginning when we -- before we even started the hearing. Perceptions, period, even the perception I have to deal with going into make a decision based on fairness and truth, that's my dilemma as well. You know, I City of Miami Page 63 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 have a community that clearly has some issues, you know, regarding how things have been operating in the police department. I have to be very clear that I'm very concerned about the seven shoot -- I have a whole bunch of issues around the Chief and some of the decisions that have been in the department, but that's not what we're here about today, you know. Commissioner Suarez: I agree. Commissioner Spence -Jones: Andl don't want to base that also on what we've -- we -- like you said -- like our City Attorney told us, we can't look at what other people are perceiving. We have to look at what's being presented right here today in front of us. So I would want us to erase any of those thoughts of what we might have read because, clearly, they're painting a picture for what they want us to see. And believe me, I'm a victim of that, so I hope no one ever paints a picture of me from something that's written. Commissioner Suarez: I hear you. Andl completely understand your perspective on that. And that's why -- I'm just giving -- shedding light on an issue that I think you highlighted very, very well, which was what this is all about. Andl think this is all about our judgment as to what were the facts that arose and whether we feel that the actions that were taken were tantamount to a demotion or not. The word, by the way, circumvent, was used by the Chief not by the Miami Herald, not by the City Manager. The word bypass authority was not used by the Miami Herald. It was not used by CBS 4. It was used by the Chief in his own words, in his own writing, in the information that we have. So he, in my opinion, by his own admission, says that he circumvented and bypassed the authority of selected members in order to ensure the goals of the police department are not compromised. That is his decision and his judgment to decide whether or not -- I mean, it's up to him to decide whether he feels that the goals are not being accomplished by bypassing that authority, but it's not his authority to do that. He doesn't have the right to do that. The goals and -- the goals of the police department are established first and foremost by the City Manager. He is the one that has the responsibility for establishing all the goals for all departments in the City, irrespective of the fact that he may not be an expert in policing. It's the same principle where the president of the United States is the chief -- commander in chief of the armed forces. He may not be someone who's ever been in the military, but he sets policy for the military. Commissioner Spence -Jones: Right. Commissioner Suarez: So -- Commissioner Spence -Jones: Andl just want -- and then I'm going to turn it back over to Chair. Andl agree with you totally, you know, on the viewpoint. You're absolutely right. I mean, if -- Chair Gort: Yeah. Commissioner Spence -Jones: -- the Charter's saying that's what it is, that's what it is. But if he has not done that, we cannot, you know, make an accusation or a claim that he did not demote 'cause the bottom line is did the demotion happen. And based upon the evidence at this point, I don't really see the demotion not happening. Mr. Martinez: Commissioner Gort. Chair Gort: Mr. Manager, yes. Commissioner Spence -Jones: Or happening, I should say. Mr. Martinez: May I ask Chief Brown or Assistant Chief Brown to describe what he's doing today? City of Miami Page 64 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Sure. Commissioner Sarnoff. Well, wait, wait, wait. Wait, wait, wait. Shouldn't we let the defense --? Mr. Martinez: He had finished Commissioner Sarnoff. Are you done with your presentation? Mr. Chavez: I'm not done with my presentation. I have no rested my case in chief sir. I intend to call the City Manager at some point -- Mr. Martinez: I thought he made -- Mr. Chavez: -- as a witness. Mr. Martinez: -- I thought Exposito made his closing statement. Commissioner Sarnoff. I thought he was just calling -- I thought he had just called Exposito and he had other witnesses to call. Mr. Martinez: He made a closing statement -- Mr. Chavez: And -- Mr. Martinez: -- saying that this was driven by the maquinitas and this and that. Chair Gort: My suggestion is write down all the questions you need to be answered. After he finishes, you get a few minutes for rebuttal. Mr. Chavez: And effectively to clarify the record, Mr. Chairman, I tendered the witness to the Commission for examination. Is that examination concluded by the Commission? Chair Gort: Excuse me. Wait a minute. I'm not an attorney. I have two or three attorneys here. I've never been a judge before -- Mr. Chavez: You have four. Chair Gort: -- so it's kind -- maybe, well, four. I'm sorry. My apologies. Mr. Chavez: Thank you for the acknowledgment. Chair Gort: There might be so many more sitting down there taking note to see how they can do it in the future. Mr. Chavez: As to -- Chair Gort: Are you -- have you finished with your presentation? Mr. Chavez: I am not going to redirect the Chief although I understand that there was a request of me made whether they can make questions. I will direct that request to Mr. Chairman. Chair Gort: If there's any question of the Chief -- is that what you're asking us? Mr. Chavez: My examination of the Chief is concluded. City of Miami Page 65 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Okay. Do you have any other witness you have to bring up? Mr. Chavez: Yes, I do. I have several. Chair Gort: Okay. It's 12: 30. Mr. Martinez: Can I ask the Chief some questions? Chair Gort: Sure. Commissioner Spence -Jones: Can we take --? Ms. Bru: Mr. Chair. Chair Gort: Yes. Ms. Bru: I would suggest that if the Chief -- if the defense counsel for the Chief has concluded, the Chief has been tendered for any questions that the Commission may have, it may be an appropriate time also if the Manager had any cross-examination, any questions for the Manager, to do so. Chair Gort: Sure. Mr. Martinez: Okay. We'll agree to disagree, I guess, on what we've discussed at our meeting. But my recollection is the demote -- the names of the people, the demotions, were not expressed, number one. Number two, I want to go on the record that this decision thatl made is not politically connected. No pressure from the Mayor or any member of this Commission or former Commission -- Mr. Chavez: I object to the form of the question, Mr. Chairman. Chair Gort: Excuse me, sir. Mr. Martinez: I just want to clar -- he said. Chair Gort: He's making a statement. Excuse me. Mr. Chavez: He's testifying, sir. Chair Gort: Go ahead. Mr. Martinez: It's not a question. I'm just making a statement for the record. Mr. Chavez: I would move that such -- Commissioner Sarnoff. But you -- what you might want to do, Mr. Chair, is let him have a closing, but let him ask questions of the Chief. Chair Gort: Okay. In other words, what they're saying is this is something we never had before in the history of the City ofMiami, and this is something new that's taking place, so my suggestion -- if you have a closing statement, write it and at the end -- my understanding of the procedure now is to ask questions. Mr. Martinez: Okay, I'll ask -- City ofMiami Page 66 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: If you have any specific question, ask the question. Any statement you want to make, you'll be able to make it later on after we close, okay. Mr. Martinez: The plan of action that you referred to is not my plan of action. It's your plan of action that I asked you for. You have not given me one. Mr. Chavez: Same objection, Mr. Chairman. Mr. Martinez: Your -- I'm not an attorney here, guys. I mean, I'm at a disadvantage. He's a seasoned attorney. I'm just trying to state the facts in a very simple way so that everybody understands. Commissioner Sarnoff. I think he's asking -- all he's asking you to do is ask him questions. Chair Gort: Ask questions. Mr. Chavez: Just ask the question whether or not, sir. Mr. Martinez: Is this e-mail from your plan of action? Mr. Chavez: Please identify the document for the record. Chair Gort: Read the name, the date. Mr. Martinez: August 5 -- Chair Gort: And the title if it has any title. Mr. Martinez: -- 2011, at 11: 09. Is this your plan of action for the overtime? Chief Exposito: The plan of action for the overtime, I explained to you here in the closing here that would go ahead and abide by your request that we go ahead and move people from one area to another. Mr. Martinez: I asked you to consider that as an option. I'm asking you for a plan on how you plan to reduce overtime, period, end. Chief Exposito: That's exactly what did. Mr. Martinez: You did not. This is not a plan of action. Chair Gort: Okay. Excuse me. This -- Mr. Chavez: Objection. Chair Gort: You asked a question, he answered and -- Mr. Martinez: Okay. Commissioner Sarnoff. Argumentative. Chair Gort: What is it? Commissioner Sarnoff. Argumentative. City of Miami Page 67 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Argument -- yes, whatever. Mr. Martinez: When I -- when we met, did tell you I had no problems with the promotions? Chief Exposito: When we met, and it was August 1, not the 4th, as you had mentioned -- andl told you that I had several -- I had two vacancies I needed to fill, and I had other changes I needed to make in my staff andl told you they were three. I never gave you the names, and they were provided to Ms. Pruitt, and they were provided on that date. And it didn't become an issue until August 4, which was three days later, that apparently the names were finally brought out that they became an issue. Mr. Martinez: Correct, except didn't know it was three. I thought it was just a casual, you know -- Mr. Chavez: Object to the form. Mr. Martinez: -- demotion. Chair Gort: Excuse me. Question and answer. I'm being a judge now. Mr. Martinez: Didl askyou to wait 'til you come backfrom vacation -- it was only a week, week and a half -- and we would further discuss this? Chief Exposito: Once you told me that I was not going to be able to demote these individuals and promote the people I wanted, I told you put it in writing, and that was the end of our discussion. Andl never heard from you in writing anywhere in here that you saidl have issues with what you've done. You should not have moved these individuals. I disagree. There is nothing that you've informed me of that you have issues with the fact that I moved these individuals, thatl reassigned them to another area. Mr. Martinez: At that point, Chief the damage was already done. I did what I had to do, which I thought was insubordination and filed -- and suspended you. But before that, didl askyou, stay calm, keep the status quo, and wait 'til you come back from vacation? Chief Exposito: I don't recall you saying that. But I will tell you one thing, that you never told me that you had issues with that; and I allowed you until Monday, before I made those changes, to come back to me and say I have an issue with these people being transferred the way that you've described in your e-mail. There is no e-mail from you -- I never had a conversation with you after that where you told me that I was not to move these people around, which is the reason why did it. I was transparent. Ilet you know what was doing. I also let the Commission know what I was doing. I wasn't hiding anything from anyone. Mr. Martinez: No, Commissioner, the way -- I mean, Chief my -- the way I read this is you've already done this and you're just informing me that you did it. You're not asking for my opinion or my approval. Chief Exposito: The one on the 8th was I actually moved them. But the one on the 5th, I told you exactly what I was going to do, and you did not come back to me and tell me I have issues with that, do not do that. Chair Gort: Okay. Mr. Martinez: Well, the way I read the e-mail, it says necessitates thatl circumvent or bypass the authority of selected staff in order to do -- to ensure the goals of the police department are not City of Miami Page 68 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 compromised. Obviously, this is not an optimal way to run the organization, and) ask that you furnish me a date certain as to when the requested personnel changes can take place. In other words, you're not asking for my approval for what you did. You're just asking -- Chair Gort: Okay. Mr. Martinez: -- when can the personnel demotions take place. You're not asking for my approval -- Mr. Chavez: Object to the form, argumentative. Chair Gort: Excuse me. Excuse me. Mr. Martinez: -- to bypass -- Chair Gort: You're asking -- ask your question, did you give me a date that when you're going to do that. Mr. Martinez: No date. Chair Gort: Okay. Mr. Martinez: Because I wanted to have a conversation, which never occurred. Chair Gort: Okay. Any other question? Mr. Martinez: Maybe after -- can I --? Chair Gort: My suggestion is write down whatever your statement's going to be at the end. I think it's very important you write it down and later on you get an opportunity, just like this gentleman has done, this attorney here. You're not an attorney, but you get an opportunity. Mr. Martinez: When can some of the people speak? Chair Gort: He's got to finish. And my understanding is -- I've been instructed) have to allow him to rest his case. After he rest his case, then you get a few minutes rebuttal. Mr. Martinez: Okay, fair enough. Chair Gort: Okay. Let me tell you, it's 12: 30. I think we deserve a break. We've been sitting here for a while, and I've been request by some of the Commissioner -- Commissioner Sarnoff. Well, let me give you my dilemma for today, 'cause nobody approved this with my schedule. Chair Gort: Me neither. Commissioner Sarnoff. So at 2 o'clock, I need to be some place until about 4 o'clock. I'm more than comfortable staying here 'til 1: 45, and I'm also comfortable coming back at 4 and spending all night here if you want to. Chair Gort: What is the wish of this Commission? I don't have any problem either. I'll have to make a few phone calls, but I've got all day. Commissioner. Commissioner Spence -Jones: Definitely, I yield to the fact if you need that. Can we just take a City of Miami Page 69 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 --? I just need to take a break. Can l just take a --? Commissioner Sarnoff. Ten-minute break? Commissioner Spence -Jones: Yes. Can we take a ten-minute break? Chair Gort: We'll take ten-minute break? Commissioner Spence -Jones: Yes. Vice Chair Carollo: And then we could come back and we'll -- Commissioner Sarnoff. Right. Vice Chair Carollo: -- stay 'til 2 then -- Chair Gort: Ten minutes, yeah. Vice Chair Carollo: Yeah, then we'll do -- and come back at 4. Commissioner Spence -Jones: But not all night, right? Vice Chair Carollo: No. [Later... Chair Gort: Okay. Yes, sir. You want to continue. Mr. Chavez: Mr. Chairman, I would call my next witness, who would be City Manager Johnny Martinez. Chair Gort: Okay. Mr. Chavez: Good afternoon, Mr. Martinez. Just to confirm, you did take the oath this morning? Mr. Martinez: Yes, I did. Mr. Chavez: Just for a matter of background, can you please walk me through --? Now your current position is City Manager, correct? Mr. Martinez: Yes. Mr. Chavez: And what are your job duties and responsibility? Mr. Martinez: To administer the policies and procedures of the City ofMiami and deliver a budget along with the Mayor. Mr. Chavez: Before you became City Manager, what didyou do? Mr. Martinez: I was assistant City Manager. Mr. Chavez: And before that, before you became an employee of the City ofMiami, what didyou do? City ofMiami Page 70 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: I was the Office of Capital Improvement director at Miami -Dade County. Mr. Chavez: Okay. How long did you hold that position? Mr. Martinez: A little over two years. Mr. Chavez: Okay. And before that, what did you do? Mr. Martinez: I was 22 years with the Department of Transportation. Mr. Chavez: Okay. In the 22 years with the Department of Transportation, the 2 years with Miami -Dade County, and since then with the City ofMiami, have you ever been in charge of a paramilitary organization such as the Department of Police? Mr. Martinez: No. Mr. Chavez: Okay, so you have no law enforcement experience? Mr. Martinez: Zero. Mr. Chavez: You don't know what tactical teams are? Mr. Martinez: No. Mr. Chavez: You don't know what PST is? Mr. Martinez: I'll concede to all that. I know where you're going. Mr. Chavez: Okay. Because I want to establish that would you defer to personnel such as Chief Exposito as to the best way to combat crime in our city? Mr. Martinez: I have deferred to Chief Exposito and other members that have a lot of experience in the police department. Mr. Chavez: And that would include their choice in personnel, correct? Mr. Martinez: Rephrase the question. Mr. Chavez: When you defer to their law enforcement expertise, that deference does include their choice in personnel and carrying out orders? Mr. Martinez: It does. Mr. Chavez: Okay, and in this case, you just happened to disagree with three individuals? Mr. Martinez: Only because I wanted to know cause. He put those individuals in place. He knew them for over 30 years. And then overnight, they were going to be demoted, and their status was going to change, and l just wanted to know why. Mr. Chavez: How did their status change? Mr. Martinez: Well, I just looked up the legal definition of status: a relative position or standing. Now I'm going to ask the three individuals involved if they believe their status is changed. Mr. Chavez: Object to the form; testing for other witnesses not on the stand. City ofMiami Page 71 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: You can do that later. Mr. Chavez: Move to strike. Mr. Martinez: Okay. Chair Gort: When he rests his case, you can bring up all the witnesses you like and you can have all the questions. And at the same time -- I know you're at a disadvantage; you don't have an attorney. He's an expert attorney. So bear with the means, okay. Mr. Martinez: Got it. Mr. Chavez: Now that definition you just read, was it provided to you during the break? Mr. Martinez: Yes. Mr. Chavez: So you didn't come with it here today, before you got here this morning? Mr. Martinez: This is what thought it was. Mr. Chavez: Yes or no, sir? Mr. Martinez: What? Chair Gort: Yes or no. Mr. Chavez: That definition you just brought with you -- Mr. Martinez: I can't just answer yes or no. Mr. Chavez: Well, if you feel to explain after you answer the yes or no, feel free. Mr. Martinez: Okay, what's the question? Mr. Chavez: The definition you just read -- Mr. Martinez: Yes. Mr. Chavez: -- was it provided to you during the break? Mr. Martinez: Yes. Mr. Chavez: Did you bring it with you in the morning? Mr. Martinez: No. Mr. Chavez: Okay. Now let's go to the definition under the code of the City ofMiami civil service. Do you have that in front of you? Ms. Bru: Counsel, which definition do you want him to look at? Mr. Chavez: City Code, definitions, Section 40-61. Commissioner Suarez: Can we be provided a copy of that, please? City ofMiami Page 72 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Ms. Bru: We did. Commissioner Suarez: That's the one that you provided -- Chair Gort: We have it. Commissioner Suarez: -- us before? Okay. Mr. Martinez: I have it. Mr. Chavez: You have it with you? Mr. Martinez: Yeah. Mr. Chavez: Now at all times that you make decisions as City Manager for the City of Miami, you're required to adhere by the Code. Is that a yes, sir? Mr. Martinez: Yes. Mr. Chavez: You must answer audibly for the record. And you must adhere to the Charter. Mr. Martinez: Yes. Mr. Chavez: So the definition in this Code applies to you -- Mr. Martinez: Absolutely. Mr. Chavez: -- as chief administrator of this city. Mr. Martinez: Yes. Mr. Chavez: And the definition -- and tell me ifI read it incorrectly -- that demotion is a reduction in classification and status. Yes or no? Mr. Martinez: That's what it says. Mr. Chavez: By the reassignments, how was their classification between unclassified and classified changed? Mr. Martinez: Not at all. Mr. Chavez: And that's the first prong -- Mr. Martinez: Yes. Mr. Chavez: -- that was not met under the City Code's definition. Mr. Martinez: Yes. Mr. Chavez: You readily concede that? Mr. Martinez: Absolutely. Commissioner Suarez: Mr. Chairman, ifI may. City of Miami Page 73 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Yes, go ahead. Commissioner Suarez: I thought we established before the break that this was not relevant to the proceedings because the employees were not classified and that this definition of demotion did not -- and by the Chiefs own admission -- was not applicable to the case at hand. Madam Attorney, could you please give this Board and us, as judges, instruction on that? Ms. Bru: The definition that we're reading now is a definition that applies to the classed service. However, when you have a classified employee who is then promoted to a rank that is not considered in our Chapter 36 of the Charter as part of the classed service -- I think anything above captain and -- anything above captain is no longer part of the classed service. So if you have an employee who's an assistant Chief then that would be considered unclassified. But if you're going to take that employee and roll him back to a classified position, I guess you do that through a demotion. Mr. Chavez: And -- Ms. Bru: But I don't think that, technically, that definition is necessary what controls here. It's just the definition that applies within the classed service when you're going to demote someone. Commissioner Suarez: Thank you. Mr. Chavez: My response to the -- Chair Gort: Okay. Thank you. Mr. Chavez: -- objection would also be that the only cause required demotions are classified service. Therefore, there was no cause in this instant required to be provided, just in response to the objection. Vice Chair Carollo: I'm sorry. Can you repeat that again? Mr. Chavez: That no cause is required to bring some -- roll someone back from unclassified to their classified position. Commissioner Suarez: Madam Attorney, we -- didn't we already establish as well that the City Charter allows the Manager to require cause, if necessary, under his powers and authorities as established by the Charter? Ms. Bru: Yes, we have. Commissioner Suarez: Thank you. Mr. Chavez: I think that's a matter of legal argument interpretation, but I will defer. Chair Gort: Okay, but we're not going to argue it today. Mr. Chavez: I do reserve the right to raise it in closing. Chair Gort: Okay. Mr. Chavez: Now in the August 4 e-mail, you concede your principle belief that each -- andl don't want to get this correctly -- incorrect -- every director needs to run their shop and be held accountable, correct? City of Miami Page 74 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Correct. Mr. Chavez: Would you agree with me that ChiefExposito's degree of accountability would be eroded if he is -- control of his subordinates is taken away? Mr. Martinez: Rephrase -- restate the question. Mr. Chavez: Sure. If you choose who works under him and that person, for whatever reason, does not live up to -- that person's job performance does not perform to standard, who's accountable, you or the Chief? Mr. Martinez: IfI dictated who was going to report to him and that person didn't work out, I would be responsible. Mr. Chavez: Okay, so you concede that? Mr. Martinez: Yeah. Mr. Chavez: Okay, so in this case, were you making yourself responsible for Roque, Brown, and Perez? Mr. Martinez: No. Mr. Chavez: But you're going to hold him accountable for poor job performance? Mr. Martinez: No. I said -- the gist behind my statement is that I do believe directors should pick their own staff however -- and be held accountable. You pick and you be held accountable. But however, I just want some -- to look into this a little bit further before the demotions take place. That was the basis for the statement. Mr. Chavez: Between August 1 andAugust 4, did you speak to anyone with regards to Chief Exposito's proposed rollbacks or demotions? Mr. Martinez: Yes. Mr. Chavez: Who? Mr. Martinez: I spoke with Al Alvarez and Al Vega. Mr. Chavez: Okay. Remember the time frame I gave you, August 1 andAugust 4. Mr. Martinez: The per -- Mr. Chavez: Did you speak to anyone with regard to the rollbacks Chief Exposito proposed? Mr. Martinez: I spoke with the personnel director and asked her not to follow -- not to proceed with the demotions. Mr. Chavez: So somewhere between August 1 andAugust 4 these individuals were identified to you. Mr. Martinez: When they were identified, I said stop. Mr. Chavez: Okay. When they were identified, did others come to talk to you about that? City of Miami Page 75 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Yeah. Different people did, yes. Mr. Chavez: Who? Mr. Cabrera? Mr. Martinez: Yes. Mr. Chavez: Was he for or against? Mr. Martinez: No. He just wanted -- I don't even remember. Mr. Chavez: Did he give you a recommendation? Mr. Martinez: No. Mr. Chavez: You don't recall what he said? Mr. Martinez: No. Mr. Chavez: You have no recollection? Mr. Martinez: No. Mr. Chavez: Don't remember? Mr. Martinez: Right. Mr. Chavez: After August 4, did you have any conversations with anyone else regarding the proposed rollbacks? Mr. Martinez: I think spoke with Al Alvarez and Al Vega. Mr. Chavez: Okay. Now with regards to your conversation, do you know when it took place? Mr. Martinez: Not exactly. Mr. Chavez: IfI was to suggest to you August 11, would you disagree? Mr. Martinez: I don't have the time frame. Mr. Chavez: Okay. But my question was slightly different. IfI was to suggest to you on or about August 11, would that --? Mr. Martinez: It's possible. Mr. Chavez: Okay. Now there's been some changes in the police department since September 6, correct? I mean, we have a new interim chief. That's changed. Mr. Martinez: Right. Mr. Chavez: Is that a yes? Mr. Martinez: Yes, a yes. Mr. Chavez: For any persons in his staff did you authorize any changes? City of Miami Page 76 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: No. Mr. Chavez: You did not authorize any changes in his staff? I just want to you to confirm that. You did not authorize any changes in his staff since he's been appointed September 6? Mr. Martinez: When he was appointed on September 6, he took the office. Mr. Chavez: So were you aware ofAlvarez's change and reassignment? Mr. Martinez: Yes. Mr. Chavez: Did he provide you cause, 'cause you just said you weren't aware? Mr. Martinez: No, no. He told me that he was going to make that change and I said fine. Mr. Chavez: Okay. Mr. Martinez: He said he needed to secure the Internal Affairs section to get to -- that it was the right thing to do at this time. Mr. Chavez: Did he do that before or after Mr. Alvarez was locked out of the building? Mr. Martinez: Before. Mr. Chavez: Okay. Any e-mail correspondence that you brought with you on that to confirm it? Mr. Martinez: No. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: Yes. Commissioner Suarez: I have a question of the witness, ifI may interrupt, and of the City Attorney. Is he required to request cause in every case where he makes a managerial decision, or is that something that he has his discretion on whether he wants to request cause or not request cause? Ms. Bru: Commissioner, again, the Charter speaks very broadly of control and supervision. How he wants to exercise the control and supervision is up to him. So if he wants to exercise it under some circumstances and not others, that's his call to make. Commissioner Suarez: And he can do that legally? Ms. Bru: Yes. Commissioner Suarez: Thank you. Commissioner Sarnoff. Is he subject to equal protection? Ms. Bru: Anything that any of us do because of our role as government officials and employees is subject to equal protection. Commissioner Sarnoff. So he has to be consistent in the way he effectuates changes? City of Miami Page 77 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Ms. Bru: Well, it depends the reason why he's making the change. And if he's making it -- Commissioner Sarnoff. I want to understand -- 'cause you responded to Commissioner Suarez he pretty much can do whatever he wants whenever he wants, but he can't do it selectively. Ms. Bru: Well, he can't do it based on someone's -- you know, any of the protected characteristics that would make an employment -- Commissioner Sarnoff. Right, race, creed, color -- Ms. Bru: Right. Commissioner Sarnoff. -- religion, national origin. Ms. Bru: Gender, you know, all the things that are protected under -- Commissioner Sarnoff. But doesn't -- Ms. Bru: -- Title VII. Commissioner Sarnoff. -- equal protection go beyond that? Ms. Bru: Of course the Manager is governed by the Constitution and by concepts of fairness, equal protection, due process, so -- but -- Commissioner Sarnoff. So if some City employees are treated one way and others are treated another way, is it your position that it's only based on gender, religion, creed, race? Ms. Bru: I don't quite understand where we're going with this. The Manager can control and supervise based on how he determines that he needs to do so. Obviously, I would never advise him to make decisions that are based on classifications that are protected or to be selectively overseeing one department because the director is of one particular race and not overseeing another department because the director is of another race. I mean, but -- Commissioner Suarez: Mr. Chairman, ifI may, after Commissioner Sarnoff. Chair Gort: Yes. Go ahead. Commissioner Suarez: Thank you. I just have a question for the Manager, another question. Do you feel that your replacement of Commander -- Major Alvarez with the person who you replaced him with, did you feel that was an arbitrary or capricious decision or did you feel that that had some basis? Mr. Martinez: I thought it had basis, and it was a good business decision to secure -- Commissioner Suarez: What is the re -- what was your reason? Mr. Martinez: Just because there's allegations of these investigations going on andl wanted to get to the bottom. Are these investigations going on because -- and therefore they can't tell me the cause. So I wanted to know is Roque under investigation? Is Brown under investigation? Is Perez under these investigations that have -- that are out there? And -- Commissioner Suarez: So you -- okay. Mr. Martinez: -- by securing the Internal Affairs section, I would get the answer to that. City of Miami Page 78 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Yes, ma'am. Commissioner Spence -Jones: Okay, so, I guess -- I'm sorry. Chair Gort: Go ahead, yes. Commissioner Spence -Jones: Mr. Chairman. So -- 'cause I'm a little lost on this comment. So just so I'm brought up to speed, after the changes were made while the Chief was out -- I'm assuming we have a new chief -- interim chief now. Mr. Martinez: An interim chief. Commissioner Spence -Jones: -- what change are they talking about? So you did make -- once the new chief or the interim chief came in, you did give them direction to remove --? What direction did you give? Mr. Martinez: He -- the interim chief suggested that the Internal Affairs be headed at this moment by someone else, and I said fine. Mr. Chavez: What are the causes? Commissioner Spence -Jones: But what -- I'm -- Mr. Chavez: Forgive me. I'm sorry. Chair Gort: Excuse me. Mr. Chavez: Forgive me. Chair Gort: We give you a break. We don't interrupt you, so please I ask for the same courtesy. Mr. Chavez: Forgive me. I'm sorry. Commissioner Spence -Jones: No problem. Chair Gort: Thank you. Commissioner Spence -Jones: I'm just -- I'm a little concerned about that statement, Johnny, because if the Chief came to you in the midst of all of this and said -- which, again, anybody can say there's an investigation going on, but he is at the time the person that is the chief law enforcement officer says I have concerns about these three individuals, right, andl want to demote them. And you say, no, not to have -- not now or you need to look further into it. Mr. Martinez: Wait 'til you come back. Commissioner Spence -Jones: And these are the same three that are attached to -- I'm assuming the investigation or the files would be in IA (Internal Affairs), correct? I'm lost. Then why would -- what's the motive behind it now -- Mr. Martinez: I wanted to get -- Commissioner Spence -Jones: -- of removing Al Alvarez? I mean -- Mr. Martinez: Well -- City of Miami Page 79 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: -- I'm just trying to understand if he's the person that's kind of somewhat overlooking or overseeing that division and these are three people that are -- may have some issues and some concerns, he may be -- the Chief might be -- have some concerns on, then how does removing those -- removing the person that was overseeing the investigation, how does that help? Mr. Martinez: Because they control all the information, all the back and forth and that type of thing, the files, andl wanted -- Chief Orosa thought it was a good idea to have another person over -- you know, a different set of eyes looking at that department right now because it was important. Commissioner Spence -Jones: So -- andl'm going to end on that -- but -- so in other words, our former Chief when he communicated to you that he had some issues and some concerns about what was going on in his department up under his leadership and for whatever reason he communicated those things to you, you decided that that wasn't okay. But when the new person came in that you appointed -- andl -- and still -- don't know Manny. I heard he's a great guy; can't wait to get to know him. But -- andl don't even know what your judgment was on even making that selection, so I don't even want to open that up. But how were you able to determine that this one was okay and that one wasn't? Mr. Martinez: The Chief wanted to demote three individuals. This is just a lateral to the side to have someone else oversee Internal Affairs, which is a crucial department as far as information and -- Commissioner Spence -Jones: But perception, okay. I'm going to say this to my fellow colleagues. I'm going to do what's right no matter what, but the perception, you know, to the public, you know, if there's a question around the three, which I'm not even saying that there are, the worst thing that we could ever do from a public perception standpoint is start removing or having someone else handle those files. From a public perception standpoint, meaning people calling and saying, well, if there's nothing going on wrong, then why are we changing that part right now? From a pub -- I mean, do you under -- Is it me or is it --? Vice Chair Carollo: No. Mr. Chairman. Chair Gort: Yes. Vice Chair Carollo: And not only do I agree with you, I'm actually concerned with the answer the Manager said 'cause he said he did that change to see what was there, to see what investigation was there and if it was really happening and so forth and that actually is concerning to me 'cause I don't know if that's starting to, you know, play into interfering with a criminal investigation or not. So it's actually concerning to me that you stated that, yes, I wanted to see what was there. I wanted to see who was being investigated and so forth. And Madam City Attorney, as the City Manager, can he -- I don't know if I want to say interfere or look into a criminal investigation or -- what exact powers does he have or authority looking into a criminal investigation, you know? So it's actually concerning to me. And to be honest with you, I didn't know this change had occurred, first of all. I don't even know who's the major of IA. So it really -- I'm just going straight to the issue andl'm concerned. So couldl get some answers with regards to that? Mr. Martinez: Yeah. Once -- Vice Chair Carollo: I mean, as far as the Manager's authority -- Mr. Martinez: Oh. City of Miami Page 80 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: -- involving a criminal investigation. Ms. Bru: You know what, Commissioner, I really don't know an answer to that. I mean, I will find out. I can contact the police legal advisor. I know that even though I keep on repeating throughout this proceeding that he has such broad powers over control and supervision, I know that there are other requirements, other laws that govern with respect to ongoing investigations that may be applicable, andl will have an answer for you in a few minutes. Vice Chair Carollo: And by the way, I apologize 'cause I briefly grabbed the floor real quick, but I think Commissioner Spence -Jones had the floor. Commissioner Spence -Jones: I just think that in -- you know, Mr. Manager, I just think that's just a dangerous practice. I think that if we're in the midst of you know, settling whether or not the Chief goes or comes, you know, we just got to do things right. And you know, if we're concerned sitting up here -- 'cause we all have constituents to answer to. That one particular department, AI [sic], is a very sensitive department. And especially if your notice of suspension is based upon perhaps, you know, three individuals that may be a part of some sort of investigation, I just don't feel that that's a great judgment call on your behalf. Mr. Martinez: The acting Chief recommended that we change the head oflnternal Affairs (UNINTELLIGIBLE). Chair Gort: Let me give you a suggestion. Excuse me a minute. Let me give you a suggestion. Make sure you put that down. Later on when you get a chance to speak, let the acting Chief state why he made that decision. Commissioner Sarnoff. You described that as a lateral move for Al Alvarez. Why then is it any different than the move that was made for the other three? Mr. Martinez: The other three were already -- Ms. Thompson: Excuse me. I'm sorry, Chair. Mr. Manager, is your mike on? Mr. Martinez: Yeah. The other three were already chosen by ChiefExposito. They were already chosen. They were part of his team. He worked together for 30 years. Commissioner Sarnoff. No. You're missing my point. If Alvarez wasn't demoted, he was just a lateral move -- Mr. Martinez: Right. Commissioner Sarnoff. -- why can't we describe the other three as simply a lateral move just like Alvarez? Mr. Martinez: He -- Commissioner Sarnoff. Same pay -- Mr. Martinez: -- Al Alvarez -- Commissioner Sarnoff. -- right? Same pay? Mr. Martinez: -- still has all the powers of the -- City of Miami Page 81 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. Same -- Mr. Martinez: He hasn't been stripped of his -- Commissioner Sarnoff. -- rank? Mr. Martinez: -- he has not been stripped of any of his powers or duties. Commissioner Sarnoff. Listen to my question. Mr. Martinez: Yes, yes. Commissioner Sarnoff. Same pay, same rank -- Mr. Martinez: And still the same duties, not stripped. Commissioner Sarnoff. Well, I doubt he's doing the same duties. Mr. Martinez: He still has the powers of a major. Commissioner Sarnoff. So Alvarez has access to his office and he's handling IA? Mr. Martinez: Not the IA. Commissioner Sarnoff. So his status has changed? Mr. Martinez: Okay, then we agree on status changes when you -- Commissioner Sarnoff. So you have demoted Al Alvarez under your definition? Mr. Martinez: No. Commissioner Sarnoff. Well, then there's an expression in law called disparate treatment, and disparate treatment is couched in equal protection. How are you treating Al Alvarez the same way as you're treating the other three 'cause you're --? At one moment you said, and listened to it carefully, it was a lateral move for Al Alvarez. Mr. Martinez: He's still a major. Commissioner Sarnoff. No, but so is Roque. Vice Chair Carollo: So is everyone else. Commissioner Sarnoff. So they're the same rank that they were before. Vice Chair Carollo: Exactly. Commissioner Sarnoff. I mean, how can you use one definition for one set of employees and a different definition for a second set of employees? And that brings up a whole different judgment call. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: Yes, sir. City of Miami Page 82 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: I think we're kind of missing the point. I think the point is that based on the Charter, the Manager has the authority to basically, in a particular circumstance, decide he wants a certain amount of con -- he may have in that circumstance, for example, lost confidence in the Chief and obviously he just appointed a new interim Chief so he may have a high degree of confidence in his new appointee. So he may decide to give more discretion to the new appointee than he gave to the old appointee in a point where he had lost essentially all confidence from what the facts are here presented. I guess my question to the Manager would be, were there decisions previous to this decision where you -- when you -- I suppose -- Well, let me just ask the question a little differently. By the time you got to this point, had you lost confidence in the current Chief? Mr. Martinez: Absolutely. Commissioner Suarez: Before you got to that point, were there moments where you would have just agreed with one of his decisions and really not sought any more rationale or explanation? Mr. Martinez: I don't understand. Commissioner Suarez: The question was, before you lost confidence in the Chief were there decisions where he could just come to you and say, look, I think we need to do this and you would have said, yeah, that's fine, go ahead. Mr. Martinez: For example, hiring the 16 officers that are authorized. He came to see me andl approved it, yes. Commissioner Suarez: So, I mean, I think the situation's a little distinguishable and that's just kind of what I wanted to point out 'cause it does seem in fairness. Commissioner Sarnoff. I didn't know he even evaluated Al Alvarez. Chair Gort: Excuse me. Commissioner Suarez: I'm not so sure he has to. Commissioner Sarnoff. Okay. Chair Gort: Excuse me. Let me interrupt a minute. Let me give you a suggestion because lawyers, when they start arguing, you can argue all night andl don't think we all can be here all night. My suggestion is you name a new interim Chief that interim Chief came to you and he talked to you and you guys decided on something. My suggestion is write down what the question is and later on he can maybe answer. When you bring your witnesses, they can answer on your behalf. Thank you. Go ahead. Mr. Chavez: Explain for me the temporal component based on Commissioner Spence -Jones's inquiry. Did you have this discussion with regards to the lateral move of Al Alvarez before or after you named Interim Chief Orosa interim Chief? Mr. Martinez: After. Mr. Chavez: After? Mr. Martinez: Yes. Mr. Chavez: Do you know when Al Alvarez was locked out of his office? City of Miami Page 83 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: A few days ago. Mr. Chavez: Okay, so after September 6? Mr. Martinez: After September 6, yes. Mr. Chavez: Okay. You'll stand by that? Mr. Martinez: Yes. Mr. Chavez: Now there was another lateral move in the department under Interim Chief Orosa, correct? Mr. Martinez: I -- Mr. Chavez: Sir, you must answer my question. You cannot get direction from anyone else, and I would object to that. He is under oath. Mr. Martinez: The -- Chair Gort: Okay, I understand that he's under oath. At the same time, this is -- I know it's quasi judicial and so on. We're not judges. This is not a trial court and full court so you have to have certain flexibility. Your client has the benefit to have you, a very sharp attorney who's doing a great job. Mr. Chavez: I'm flattered Chair Gort: But at the same time, this gentleman doesn't have any attorney. One of our Commissioners is the one that tried to be an attorney on his behalf, so let's try to be fair with everybody. Mr. Chavez: Sir, in fairness, I think that -- Chair Gort: Thank you. Mr. Chavez: -- he cannot take guidance from others. Chair Gort: Thank you. Mr. Martinez: Well -- Chair Gort: Okay. Mr. Martinez: -- the -- since Al Alvarez -- there had to be a replacement, so that replacement, I don't know the name of the person, is in Internal Affairs. Mr. Chavez: Do you know the rank of the gentleman, officer in charge of IA right now? Mr. Martinez: I think it's lieutenant. Mr. Chavez: Major higher than lieutenant? Mr. Martinez: I think. I'm not positive. Can I ask him? Mr. Chavez: No. City of Miami Page 84 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Okay. Chair Gort: No, no. Mr. Chavez: So you put or agreed with a lesser ranked officer to be in charge of the Internal Affairs unit? Mr. Martinez: If that is the case, I did. Mr. Chavez: Now Commander Rodriguez, were you aware of that reassignment? Mr. Martinez: No. Mr. Chavez: Did you -- so since you were not aware of that reassignment, you were never provided cause by Interim Chief Orosa and agreed to it? Mr. Martinez: Who is Rodriguez? Is he the guy in Internal Affairs? Mr. Chavez: Well, I'll have my next witness answer that question, sir. The question is for the City Manager, chief administrator of the City ofMiami. Do you know any other moves that were made with regards to Rodriguez once interim Chief came into the department? Mr. Martinez: If Rodriguez is the person that's in Internal Affairs, yes. Mr. Chavez: Okay, so now before you said you weren't aware, now when I mentioned of any other lateral moves, now you suggest that you are. When was cause provided for you for Rodriguez? Mr. Martinez: It was not a demotion or anything. He was given an assignment that he was willingly accepting. Mr. Chavez: Okay. I'm just trying to figure out why lateral moves are okay for an interim Chief and not ChiefExposito. Can you answer that? Mr. Martinez: Chief Exposito wanted to demote the three individuals. I told him to stop so we could discuss it when he came back from vacation. He circumvented the demotions by doing what he did. He says it. I circumvented and bypassed their authority. Mr. Chavez: Okay. You're referencing the August 5 e-mail? Mr. Martinez: The July -- yeah, whatever. Mr. Chavez: August 5 is when he used bypass and circumvent, correct? Mr. Martinez: Right. Mr. Chavez: We'll get back to that. These changes were made -- would it be fair to say that you agreed with Interim Chief Orosa that you wanted to secure Internal Affairs? Mr. Martinez: I agreed with him when he suggested we should secure Internal Affairs. Mr. Chavez: Okay. And this happened day one. Mr. Martinez: Day one, day two, yes. City ofMiami Page 85 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: He was suspended at 8: 30 in the morning, September 6. So Chief Orosa's authority to do this could not have happened until after that point in time on that day. Mr. Martinez: Exactly. Mr. Chavez: When did you guys discuss it relative to that day? Mr. Martinez: He just called me and saidl need to secure Internal Affairs, andl said, go ahead. Mr. Chavez: So -- but I understand Chief Orosa was at City Hall at 8: 30 in the morning that day. Mr. Martinez: I don't know. Mr. Chavez: Was he or not? Mr. Martinez: I don't have everybody's time clock. Mr. Chavez: Okay. Now are you aware that Internal Affairs coordinates with various other law enforcement agencies, including federal agencies? Mr. Martinez: Yes, I am. Mr. Chavez: And this change was done day one, correct? Mr. Martinez: Correct. Mr. Chavez: Why did you want to know about those internal cases? Mr. Martinez: Well, the Chief said that (UNINTET,T IGIBT,F) investigations (UNINTELLIGIBLE) and what came back to me was there are no investigations of Roque or Perez. (UNINTELLIGIBLE) Brown, which he knew about when he promoted him (UNINTELLIGIBLE). Mr. Chavez: Was the reasons for the three gentlemen's demotions ever provided to you in the days subsequent to August 8? Ms. Thompson: I'm sorry, Chair. Before the Manager answers, I need you to turn your mike back on. Thank you. Mr. Martinez: Repeat the question. Mr. Chavez: You referenced having discussions with Al Alvarez and Al Vega after August 8, the e-mail that I believe you take issue with. Do you remember saying that earlier today? Mr. Martinez: Yes. Mr. Chavez: During those conversations -- andl think suggested to you, hey, if it took place on or about August 11, would you take issue with that, and you said no. Remember that line of questioning? Mr. Martinez: Got it. Mr. Chavez: Now were the reasons identified to you with regards -- or the cause, as you put it, identified to you during the course of those conversations on August 11 ? City of Miami Page 86 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Vaguely. Mr. Chavez: Okay. You agree with me that these gentlemen hold the same positions they held on September 6, correct? Mr. Martinez: Correct. Mr. Chavez: Same rate of pay? Mr. Martinez: Correct. Mr. Chavez: Same benefits? Is that a yes, sir? Mr. Martinez: Yes. Mr. Chavez: I'm trying to understand the disparity of treatment with regards to the manner that Alvarez -- Al Alvarez was treated as compared to these other two gentlemen. Is your only rationale -- and I'm specifically referring to Roque, Perez, and Brown -- that you wondered why these gentlemen would be demoted since the Chief had appointed them and worked on his staff for longer -- for a long time? Mr. Martinez: What's the point? Mr. Chavez: Trying to figure out why you wanted cause when just a reference by an interim Chief that had been there a matter of hours when he took actions against Alvarez. Mr. Martinez: He explained that it was a good business decision to have someone else be in Internal Affairs while this is going on. Mr. Chavez: Okay. Was it to take a peek at the files? Mr. Martinez: I don't know. Chair Gort: Let me ask a question to the attorneys since I'm not familiar with the court rulings and, thank God, I've been in court just for traffic court. My understanding is a lot of times when the client is asked a question, the attorney will say, wait a minute. Allows the person to discuss the answer and then make the answer. Commissioner Suarez: Madam Attorney. Vice Chair Carollo: Mr. Chairman. Commissioner Suarez: She's not -- Vice Chair Carollo: Yeah. I think your question is to the City Attorney, andl think at the time she was speaking to someone else. So I just want to make sure, Mr. Chairman, that -- Chair Gort: The question is, my understanding is from what I see in TV (Television) -- because the only courts I've been, thank God, is just in traffic court -- when a question's asked of a witness and the answer is -- the lawyer and the witness, they get together and they come up with the answer. Commissioner Sarnoff.. No. City of Miami Page 87 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Does he have --? Well -- Commissioner Sarnoff. The rules are slightly different in criminal and slightly different in civil. Chair Gort: Okay. Commissioner Sarnoff. In a civil proceeding, once a person takes the stand and takes their oath, their lawyer cannot discuss any element or any aspect of their testimony. Chair Gort: Okay, okay. I got you, okay. Commissioner Sarnoff. And that's what he was trying to -- Chair Gort: So he's -- Commissioner Sarnoff. -- preclude. He was trying to preclude the Manager from gaining knowledge that he didn't have either through a collapse of memory or no knowledge of it at all to demonstrate to us what his testimony was. Chair Gort: Okay. Commissioner Sarnoff. In a civil proceeding, he could not even approach nor could that witness be approached at all. In a criminal proceeding, it varies a little bit, but I don't think we're in a criminal proceeding. Chair Gort: No. We're not in criminal. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: So my understanding is he's act -- he's on the stand right now with the judge put him there and he's got to answer yes or no or -- Commissioner Sarnoff. Right. Chair Gort: -- I don't recall or I don't remember. Okay. Commissioner Sarnoff. And he can explain his answers. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: Okay. Commissioner Suarez: May I add one thing? Chair Gort: Yes, sir. Commissioner Suarez: It's -- this is a little bit of a different procedure too because the Manager has, in essence, two roles. He's acting as a prosecutor, so to speak, in terms of the charges that he's levied against the Chief and he's also acting as a witness right now in terms of the questions that he's being asked. So I don't think he's represented by an attorney. I don't know that he should or shouldn't be but -- you know, that's the difference in the role that he has to play. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes. City of Miami Page 88 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: And again, did anyone preclude him from not having an attorney? It was his judgment not to have an attorney. Commissioner Suarez: No, no, of course. I'm not saying that he -- Vice Chair Carollo: And I'm going to -- Commissioner Suarez: -- I'm not making that claim at all. Mr. Martinez: Commissioner, I don't think that's fair that it was my judgment that didn't have an attorney here. Don't you think ifI had the opportunity to have an attorney here and have the City pay for it, I wouldn't? Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: All I request is, listen, over this last year and a half, we've had numerous, numerous tough issues with unions and with just -- numerous tough issues. We've had four managers. And to be honest with you, the decorum has never been lost. All ask that we treat everybody with respect and that we don't lose decorum. Because again, my whole tenure here, we have dealt with serious issues, issues that affect lives, that affect employees, you know. And the truth of the matter is, this Commission and everyone has always acted the way this historical building should demand to be acted. So all ask is that we maintain the decorum and we maintain professionalism. Chair Gort: I agree with you. Vice Chair Carollo: Thank you. Chair Gort: Yes, sir. Continue. Mr. Chavez: Mr. Manager, why did you want to look at the Internal Affairs files? Mr. Martinez: I didn't want to look into Internal Affairs. Mr. Chavez: Okay. Didn't you suggest that it was -- part of the reason why you assented to the request from the interim Chief is that you wanted to know? Mr. Martinez: No. Mr. Chavez: You never said that earlier today? Mr. Martinez: No. I said that the acting Chief said we should take control of the Internal Affairs unit and said fine. There's no files that wanted to see. Mr. Chavez: Okay. What kind of investigations does the Internal Affairs unit perform? Mr. Martinez: Only that the -- there are no open investigations on the three people that were going to be demoted. Mr. Chavez: How do you know that if you didn't want to look at the files? Mr. Martinez: I didn't look at the files. He told me. City of Miami Page 89 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: You asked the interim Chief what investigations were going on criminal and internal in the Internal Affairs unit? Mr. Martinez: No, no. I didn't ask him anything. He told me that there are no investigations regarding these three individuals, an open case on Brown that the Chief knew about when he promoted him, and I just found that out in the break. Mr. Chavez: Did the interim Chief volunteer this information to you? Mr. Martinez: Yes. Mr. Chavez: So you didn't inquire about it? Mr. Martinez: No. Mr. Chavez: Do you know if that disclosure's appropriate? Mr. Martinez: Why not? It's been mentioned that there's open investigations and these mysterious investigations going on. Mr. Chavez: Okay. Now the reasons given by Al Alvarez to you in that August 11 conversation still -- did you -- did they satisfy you? And I'll rephrase the question. The reasons given to you in that August 11 conversation you had with Al Alvarez for the demotions of Roy Brown, Jose Perez, and Ricardo Roque, they were not -- they were unsatisfactory to you, correct? Mr. Martinez: Correct. Mr. Chavez: Did you agree at that time to the demotions? Mr. Martinez: No. Mr. Chavez: At this time, I tender the witness for more -- further examination before the Commission. Commissioner Spence -Jones: Chair -- I just have one quick question, Mr. Chairman. Chair Gort: Yes. Commissioner Spence -Jones: And maybe Mr. Manager just said it not realizing that he did say it, but you did kind of mention that you kind of wanted to know -- and I'm assuming that you wanted to know because the Chief mentioned that the reason why this was happening was because of the investigations going on with these three other parties. So I mean, I don't see anything wrong with you wanting to know, so I -- but you -- I just wanted to make sure you knew, because you know this is a sworn testimony, that you did say -- you know, in the midst of this questioning you did say, yes, you wanted to know. Mr. Martinez: Yeah. I -- Commissioner Spence -Jones: Okay. Mr. Martinez: -- didn't specifically ask to find out if there was open investigations on these three individuals. Commissioner Spence -Jones: Right. And you know, the thing that's kind of alarming to me -- and again, you know, my issues will -- you know, definitely are beyond these two issues on the City of Miami Page 90 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 hearing, you know. I have other issues that I'm going to have to address with the Chief that my community's very concerned about. But when I just -- when I'm listening to, you know, the things that were most important when we have a new chief coming on board, you know, the things that were most important was to kind of find out what was in the IA files, looking at those issues instead of like -- for me, the real issues that I got going on in my district, which is the issue of seven, eight young people getting shot in the streets. Like -- I just -- I'm trying to understand - I mean, I know that there's a whole investigation going on that, but just the level of priority on what's really kind of important, andl do believe that someone's life is definitely more important than what's going on in IA. I'm just curious as to why that was the first issue that was of importance than, you know, trying to get to the bottom or trying to have a greater understanding -- 'cause I do understand you have inherited this from the past City Manager, but you were still on the Administration, so I'm sure you knew some of the stuff that was going on. Like, why wasn't that like top on the list? Or even better yet, even the issue of -- and we talked about this the morning that you were getting ready to meet with the Chief -- you know, why it was only these two issues and why you didn't look at the overall issues and concerns that you might have had from the leadership standpoint from how the Police Chief was leading the department. Why did it only boil down to him basically disobeying you when there were so many other things in question? Mr. Martinez: Commissioner, all that I asked was go on vacation, come back, and we'll continue to discuss it. That's all that asked. Keep the status quo, don't do anything, and when you come back we'll discuss it. Commissioner Spence -Jones: Right. And honestly -- Mr. Martinez: That's all thatl asked. Commissioner Spence -Jones: I understand. And then what's very alarming to me -- and I'm going to move on and let my Chairman take it back -- but what's very alarming to me in the midst of all of this -- you know, we do have to make a decision or render a decision on the Chief today. And technically, he is suspended from his post and Chief Orosa is now on that post. To me, any decisions that should have been made in between until we figure out if he's in or out should have been on hold, just like when he decided to go on his vacation and you justified that when, you know -- I mean, you're communicating to me now saying, well, I just think that, you know, since he was going on vacation, everything should have been held off until then until he got back so I got a clear understanding of what was going on. It just seems like there's double standards. And I'm just concerned about -- you know, what's good for the goose should be good for the gander, and that's not what I'm getting from this hearing. And I'm hoping that once the witnesses get up, we'll gain a better understanding of what actually happened because it's -- at this point, you know -- Mr. Martinez: I agree with you. We'll wait 'til the witnesses get up and explain. Commissioner Spence -Jones: Yeah, but, you know -- andl definitely want to hear from the witnesses. But if nothing else, Mr. Manager, it should be so clear from you, with just you talking to us, all five of us sitting on here, what the true case is about. And it just sounds like maybe y'all just, for whatever reason, maybe going into the post, you know, you might have had your perceptions. I don't know. Maybe reading too much of the Miami Herald. I'm not sure. But the issue is when I look at the situation and we hear it, too many times in this hearing I'm hearing you saying for the interim Chief it's one thing but for the old Chief -- and not trying to call you old -- but the other -- you know, the Chief whatever, it's not the same. Commissioner Sarnoff. He looks pretty old. Commissioner Spence -Jones: So I'm just -- that's the confusing and alarming thing about this City of Miami Page 91 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 because I just -- I don't want to be a part of anything that's not going to be just. And the more and more we hear it -- and know I'm not the only one up hearing this becauseit's coming out of -- it's coming -- they're your words. They're your words. Chair Gort: Yes. Commissioner Spence -Jones: I'm done. Chair Gort: Okay. Mr. Chavez: I tendered the witness to the Commission. Chair Gort: I beg your pardon? Mr. Chavez: I tendered the witness to the Commission for further questioning. Chair Gort: Okay. That means we can ask him question now, right? Mr. Chavez: Yes, Mr. Commissioner. Commissioner Sarnoff. You're really getting the hang of this. Chair Gort: You know, I always wanted to be a lawyer. Maybe I'll go back to law school, who knows. Commissioner Sarnoff. I think we're going to give you an honorary degree. Chair Gort: Okay, any questions? Commissioner Spence -Jones: Question -- Chair Gort: Yes. Commissioner Spence -Jones: -- you mean questions for the -- Commissioner Sarnoff. The Manager. Chair Gort: For the Manager. Commissioner Spence -Jones: -- City Manager? The only question I really had -- and/ just wanted to have clarity on the circumvent, because I think that if anything that is shaky into -- in this whole conversation is circumvent. And they were not your words. They were actually the Chief words. And you know, I guess I'll have a opportunity to ask the Chief this again, but you know, when -- according to Webster, it kind of talks about, you know, to circumvent something, it says to avoid by artfulness or deception, okay, and/or to outsmart or outwit, you know. So the real -- to me, the real bottom of all of this was what was the Chief's intentions. Like that's what it all boils down to. Was his intention to disobey and say I'm going to do what want to do anyway? Was that his intentions? Or was it -- or -- which is what think you believe it was and it's okay to believe, you know. Or was it, okay, I don't disagree with this. I'm going to be obedient, right, to what you're asking me to do. I'm not going to change their positions. I'll address the whole issue when they get back -- when you get -- when I get back, but in the meantime, because for whatever reason, the imaginary investigation that's going on, I want to deal with that when I come back. But in the meantime, 'cause I don't feel comfortable if I'm responsible or accountable, I want to make these changes until get back, Mr. Manager, and then we can discuss further. That's -- to me it just sounds like two guys that just don't agree on City of Miami Page 92 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 each other's intentions. Mr. Chavez: Mr. Chairman. Chair Gort: Yes. Mr. Chavez: Can I ask one brief question? Chair Gort: I thought you said you gave us the floor. I mean -- Mr. Chavez: Commissioner Spence -Jones actually brought something to my attention that would like to clam for her through my question of the witness. Chair Gort: Okay, sir. Mr. Chavez: Do you have the August 5 e-mail there? Mr. Martinez: Yes, sir. Mr. Chavez: Whose authority was being bypassed and circumvented? Third full paragraph, first sentence. Mr. Martinez: Third paragraph (UNINTELLIGIBLE) the restrictions you have imposed on me in regard to the selection, placements and movement of my senior staff will necessitate that circumvent or bypass the authority (UNINTELLIGIBLE) -- Ms. Thompson: The mike. Commissioner Spence -Jones: Your mike. Mr. Martinez: The restrictions you have imposed on me in regards to the selection, placement, and movement of my senior staff will necessitate that I circumvent or bypass the authority of selected staff members. The authority of selected staff members. Mr. Chavez: Not yours. Mr. Martinez: Not mine. Mr. Chavez: Thank you. Chair Gort: Okay. Commissioner Suarez. Commissioner Suarez: I have some questions. My first question is, did you feel -- do you feel that the circumvention of the authority of the staff members in question was -- rose to the level of a demotion or worse than a demotion possibly? Mr. Martinez: Yes. Commissioner Suarez: Still looking at the statement. Chair Gort: He's thinking. Vice Chair Carollo: I'm waiting. Chair Gort: He's being an attorney now. City of Miami Page 93 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: I'm waiting. Commissioner Suarez: Mr. Manager, is it your opinion that you control or the Police Chief controls the goals of the police department ultimately? Mr. Martinez: Yes. They should be set together, but yes. Commissioner Suarez: I understand. In the event that there's a conflict, whose philosophy governs? Mr. Martinez: Mine. Commissioner Suarez: I don't have any further questions. Chair Gort: Commissioner Sarnoff, I think he needs to leave. You want to -- Commissioner Sarnoff.. Can we just do a two-hour break? Is that --? I'm just trying to -- Chair Gort: Right. No, I understand. Vice Chair Carollo: That's fine. Chair Gort: Okay. You have to go to -- you got your court hearing or something. Commissioner Sarnoff.. Not court. I'm actually going out to -- there's a meeting out at Venetian Causeway over a County issue and -- Chair Gort: Sure, right. Commissioner Sarnoff.. -- it had been previously scheduled. Chair Gort: Right. Okay, we'll take a break and we'll come back at 4. All right. [Later... Ms. Bru: Mr. Chair. Chair Gort: Yes. Ms. Bru: Before we resume the proceedings, I would just like to announce that the Manager has requested assistance in continuing with the presentation of the evidence in support of the charges that he has made against the Chief and they've consulted with me under the Charter and the Code. I have the authority to authorize retaining counsel. Since in this case Mr. Alberto Milian is going to -- who's going to be helping the Manager with the presentation of the evidence has agreed to provide legal services pro bono, there is no further authorization needed. So at this time, he will be assisting the Manager. Chair Gort: Okay. Alberto Milian: Good afternoon, everyone. My name is Alberto Milian, for the record. Mr. Chavez: Mr. Commissioner, may I clam? I may have an objection to this. Chair Gort: Okay, yeah. Let him finish, make the presentation, then you make your objection. City of Miami Page 94 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: The presentation itself may be prejudicial to my client's due process rights. Chair Gort: He just introducing himself. He's introducing himself. Mr. Chavez: Understood. Mr. Milian: Your Honor, thank you very much. My name's Alberto Milian, and I'm an attorney licensed here in the state of Florida. And I've been practicing for nearly 24 years. Under unusual circumstances, it came to our attention that the Manager was not going to be provided legal assistance by the City Manager's office. Andl say highly unusual because nearly 25 percent of my practice is labor law. I've never handled an arbitration matter in Dade or Broward County where the municipality did not provide legal counsel to prosecute any arbitration or labor proceeding. Be that as it may and having the decision already been made by the City Attorney's office, your Manager has requested that I provide him legal assistance, advice, and counsel during this proceedings, and I've agreed to do that. And I've agreed to do that at no cost to the citizens of the City ofMiami only in the interest of justice and the interest that due process be applied to all parties in this matter. So with all due respect, I'd like to introduce myself, ask for your acknowledgement of my presence, and ask that be extended all courtesies of any legal representative for a litigant in any legal proceeding before this august body. Chair Gort: Okay. Thank you. Yes. Mr. Chavez: Response, Commissioner Gort. Chair Gort: Yes. Mr. Chavez: The only due process rights here at issue are those of my client, Chief Exposito. The City is the one that initiated this process and Johnny Martin -- City Manager Johnny Martinez has been proceeding as lead prosecutor. If Mr. Milian would assist from behind Johnny Martinez, there's not much I can do to stop that. Having said that, the lead prosecutor here is Mr. Martinez. He is the one that initiated this process. Under the Charter, he acts as prosecutor. The City Attorney's office did not see fit to hire counsel on behalf of the City before this. The specific procedural due process rights at issue are not those of the City. They don't get that. It is the property interest that my client is going to be deprived of that provides the due process protections and entitles him to get counsel at his expense. Chair Gort: Okay. Mr. Chavez: Okay. So at this time, I would move to -- and again, those were not the rules that were laid out this morning when the presentation was given, and Mr. Martinez actually rested his case in chief. I expressly asked is the case in chief done? Am I commencing mine? I am the defendant. Chair Gort: Okay. Mr. Chavez: With that, I would move to strike. Chair Gort: That's your opinion. Madam Attorney. Mr. Milian: IfI may respond, your Honor, before? Chair Gort: Let me listen from my attorney, because my understanding is the gentleman's stating that our attorney didn't believe that he needed to be -- he's a prosecutor now -- from an City ofMiami Page 95 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 engineer, he's becoming a prosecutor so -- yes, ma'am. Ms. Bru: I think there's no doubt that the due process that's owed here is to the Chief who stands to lose his job. However, this Commission also should be assisted in being able to have the evidence presented in a manner that is adequate and efficient. And if the Manager feels incapable because he feels that, you know, there is an attorney on the other side who is well versed on evidentiary proceedings, who understands how to present the evidence, how to make legal argument, you know, and he feels that he's being disadvantaged, it's well within his right to come to the City Attorney and say, look, I -- you know, I would like to have the assistance of counsel. I think that it is an administrative proceeding. You know, he made an administrative decision. He feels that he wants to have assistance in being able to present the best case possible to support his decision, and it's up to this Commission to decide whether or not the assistance is warranted. I have authorized it from the perspective of having an attorney come in and provide legal representation to one of the City officers. If this Commission wants to decide that it isn't necessary, it's well within your authority, but it is something that would be appropriate. Chair Gort: Okay, thank you. Mr. Chavez: Commissioner Gort, may respond? Chair Gort: Yeah. Mr. Chavez: Briefly. Chair Gort: Yes. Mr. Chavez: My presence in this process is no surprise. It started since late last week. That was an executive decision that Mr. Martinez made leading up to this process. Therefore, to change the goalpost or move the goalpost or the strategy midstream is truly violative of my client's due process rights. Chair Gort: Okay. Thank you. Mr. Milian: Your Honor, ifI can respond, if there's a necessity. Chair Gort: Yes. Mr. Milian: I thinkl disagree with my esteemed colleague in a very clear manner. Due process applies not only for a individual who feels he's aggrieved in a grievance proceeding but for the citizens of this community. The Manager, being vested and having the position of managing this community, represents those citizens, those taxpayers, as so do you. So due process applies to all the parties, and the courts have so held up to the United States Supreme Court. This is not an issue of a one-sided affair. There is reciprocity in due process under our Constitution, state and federal as well. But in addition to that, I would say the following. The Manager in his capacity, which has been vested by you and the Charter of this community, has the ability to call upon individuals to assist him in carrying out his duties from time to time. Clearly, your City Attorney has now said that she has authorized the assistance of legal counsel in this matter, but nothing here has truly changed. There is no shifting of the goalpost. The standard of proof remains the same. The charges remain the same. The only difference here is that the Manager has called upon me to provide some expertise, some experience in presenting this case in the best possible way to you, the finders of fact, who always have an interest in getting the best information presented to you in the fairest way. A one-sided proceeding can never be fair. Chair Gort: Thank you. Okay, what's the wish of this Board, the lawyers? City of Miami Page 96 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: I have no objection with the attorney. Chair Gort: Okay. Well -- okay. Thank you. Yes, sir. Mr. Chavez: I believe that the stage of the proceedings that we left off I had tendered Mr. Martinez for cross-examination before the Commission. Chair Gort: I understand you had other witnesses. Mr. Chavez: Actually, Commissioner Gort, the defense rests. Chair Gort: Okay. Now ifI recall, you guys -- you were going to have some questions that was asked of you. You were going to ask some questions, and you were going to have some statement you wanted to make, and you wanted to call some witnesses too. Mr. Milian: Mr. Chairman. Chair Gort: Yes. Mr. Milian: IfI may speak up on behalf of the Manager, andl think we're in total agreement. If at this time the grievant has rested his case, then I think the appropriate step right now is to afford the Manager an opportunity for rebuttal. Chair Gort: Right. Mr. Milian: And at this time we would like a very short recess. We have a number of witnesses that we are going to be presenting in rebuttal before the Commission just for organizational purposes. No, we're talking about -- Commissioner Sarnoff, I think approximately maybe five or six minutes. Commissioner Sarnoff.. What were we just doing for the past two hours? Mr. Milian: Well, Commissioner, here's the point. When the Manager prepared his case, he was given the impression, the advice that he would not need to have an attorney presented here. I guarantee you that ifI would have been asked last week or last month out of necessity on a pro bono basis in fact -- Commissioner Sarnoff.. Right. Mr. Milian: -- I would have come forward. I've served on many boards for the City and done other volunteer work. I was in the middle of an eye procedure when I was noted today to come here. I came here crossing the entire -- from the county line on down to be here. I have sort of done an information dump in the time that you were so gracious to concede to us. But in the interest of fairness, given the equities on this case, the well-being of the Chief of Police, the well-being of this community and the citizens of this community, I don't think it's egregious to ask for a six -minute recess. I apologize to you. I take full responsibility, but I was not as well versed as I could have been shouldl have been notified earlier of the proceedings. Commissioner Sarnoff.. Well, here's my thinking, counsel. I mean, if you really need time, you should take an hour. But if you really need six minutes, that's speaking in somebody's ear. Mr. Milian: Commissioner, if you would give me an hour, I will graciously take an hour. Commissioner Sarnoff.. Well, you know, if we're going to give him due process, if due process is reciprocitous [sic], as you suggested, you know, take an hour. I mean, that's what I would City of Miami Page 97 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 suggest. Mr. Milian: Well, it's tough to tell a lawyer you're going to give him an hour because I'll take an hour to talk ifyou'11 allow me. But the best can do to present a better case for you and make it more understandable not only to you, to the community that is watching this matter today, I think it's incumbent upon all of us, in an abundance of caution, to be extra careful. Commissioner Sarnoff.. It's up to this Commission. Chair Gort: So how much time you need? Mr. Milian: I'll consult with my client. Commissioner Spence -Jones: Take the hour. Chair Gort: Yes, Commissioner Jones. Commissioner Spence -Jones: Definitely -- I definitely want to make sure -- if nothing else, I want to make sure there's due process on both sides. I just had to ask you one quick question. Mr. Milian: Yes, ma'am. Commissioner Spence -Jones: So were you -- so you weren't really necessarily prepared to come to present? So you got a phone call in the last two hours? Mr. Milian: Commissioner, let me put it this way. I've been following this case with a great deal of interest. My family has lived in the City ofMiami since '65. Commissioner Spence -Jones: It's okay. I just ask -- it's not -- Mr. Milian: So -- Commissioner Spence -Jones: -- it's just a simple question. Mr. Milian: -- my notification -- Commissioner Spence -Jones: So in -- Mr. Milian: -- on this matter -- Commissioner, I apologize for cutting you off -- was approximately four, five hours ago -- Commissioner Spence -Jones: So you already -- just curious 'cause -- Mr. Milian: Yes, ma'am. Commissioner Spence -Jones: -- you know, it's great that you would come to represent the Manager. I think that's awesome. I think that he needs the help, so I think this -- I'm not taking anything away from him. So I'm glad you got the help, Johnny. But are you his attorney? Are you his --? How did he -- how did you guys connect? Mr. Milian: Your -- Commissioner -- Commissioner Spence -Jones: I mean, do you just normally -- I just wanted to know how it works. City ofMiami Page 98 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: No. Let me just tell you, Commissioner. I am fairly well known in the City of Miami. I give my cell phone out liberally. I often get calls for emergency at 2 o'clock in the morning, 3 o'clock in the morning. Commissioner Spence -Jones: No, no, it's fine. I'm just saying so Johnny -- I'm assuming this is just -- this is your attorney. Mr. Martinez: Yes, he is. Commissioner Spence -Jones: So you've used him before today? Mr. Martinez: No, no, no. Mr. Milian: No. Mr. Martinez: My attorney for today. Commissioner Spence -Jones: Okay, no problem. No. I was just curious how you -- in the last two hours, how he found you, but that's fine. Mr. Milian: When the City Manager of the City ofMiami calls for help, I'll be here. Commissioner Spence -Jones: No problem. Mr. Milian: And Commissioner, if it'll address -- Commissioner Spence -Jones: And it's not -- and let me just say this. Let me just say -- Mr. Milian: -- your curiosity, we have -- Chair Gort: Excuse me. Hold it, hold it. Mr. Milian: -- mutual friends. Commissioner Spence -Jones: No, let me say this. I don't -- 'cause it's not meant to be funny at all, you know, because I think that Johnny -- honestly, I felt like Johnny needed this from day one, and that was one of the reasons why I was saying -- and from the very beginning of all this, that we needed to wait on this issue until you had all of your stuff and everything in order, you know, before we got here, 'cause now we're in the midst of a hearing and then now we have a surprise attorney show up that you just -- which is wonderful. I'm glad there's a public citizen that has an interest in, you know, making sure both sides represented, but we wouldn't have gotten here if we would have dealt with this issue later on, you know. So it's like we're involving the citizens, we're getting people all riled up, in my community especially, and I'm sure, for whatever reason, people feel that there's a reason -- a great reason to do that, but getting everybody riled up for the wrong reasons when we could have dealt with this in the beginning. So now he has to get caught up for the next hour, which is fine. I don't have a problem with that. I do want you to take the hour, because once you come out, you need to be able to present, handle it so we can move on. Mr. Milian: Yes, ma'am. Commissioner Spence -Jones: But I just was curious like how he found you -- if he was represented by you or what. But you're saying that you just saw it on TV and you felt you needed to come over and help him. City ofMiami Page 99 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: No, ma'am. I didn't say that. What I said is that -- Commissioner Spence -Jones: Okay. Mr. Milian: -- we have mutual friends that have known the Manager and myself over a number Commissioner Spence -Jones: Okay. Mr. Milian: -- of years. And since I am a criminal defense attorney andl have been involved in administrative proceedings throughout the Dade andBroward area, I was requested. Andl knew of the case andl accepted to do it on a pro bono basis -- Commissioner Spence -Jones: No problem. Mr. Milian: -- for the (UNINTET,TIGIBLE) -- Commissioner Spence -Jones: Andl welcome you, 'cause I think that this is the right thing to do so both -- Mr. Milian: I agree. Commissioner Spence -Jones: -- sides -- we could hear both sides. I just wanted to find out how the connection happened -- Mr. Milian: Thank you, Commissioner. Commissioner Spence -Jones: -- and if you were officially representing him on other issues. Mr. Milian: No, ma'am. Commissioner Spence -Jones: Okay, no problem. So we're going to -- Mr. Chairman, are we taking a hour break? Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes. Vice Chair Carollo: Before we take a break, I just want to verify I just -- you know, things are moving a little quickly now, so I just want to, you know, make sure that we just slow it down for a second and make sure that understand andl confirm what exactly has occurred. So Mr. Milian -- which I know and actually I was happy to see you. I hadn't seen you in quite a bit. I -- you know, speaking about your family, I used to listen to your dad when, you know, I was a little kid, andl heard you on the radio for some time. You knew my aunt. She knew you for quite a long time and liked you quite a bit and so forth. But with all that -- Mr. Milian: I used to -- I also used to lift weights with Commissioner Gort at the YMCA (Young Men's Christian Association) many years ago. Vice Chair Carollo: But with that all said, I wanted to verify. First of all, we agreed that -- to let him be counsel. Andl saw a couple of nods, butt wasn't sure. Chair Gort: Yes. Vice Chair Carollo: All of a sudden he got up and -- okay. And I say that 'cause I believe, you City ofMiami Page 100 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 know -- and again, I think it was obvious that, you know, I was happy when I saw him and so forth, andl hadn't heard him on the radio for quite some time, except the last time that did hear you on the radio and it was vague 'cause it was, you know, months back or I forgot this and that. It seemed like you were representing the gaming industry or the video gaming industry. Andl just don't know if that will be some issues with that. Second of all, you know, you clearly said you're a criminal defense attorney, andl mention as far as, you know, going into criminal investigations, how much does the Manager has authority or not and if -- could it be looked at as some of the things that he stated and done be construed as actually tampering with a criminal investigation. So once you said you're a defense -- criminal attorney, I -- my -- you know, it was just a red flag andl wonder, well, is there something there. Andl know I've mentioned two or three issues, so I just wanted to see if I could put those out there and see if they could be addressed and so -- Mr. Milian: Commissioner, I thinkl can allay all your fears. First of all, as you well know, I was a prosecutor for 12 years in Broward -- Vice Chair Carollo: Yes. Mr. Milian: -- County. Vice Chair Carollo: Absolutely. Mr. Milian: And when I went into private practice, for a number of years I was in-house counsel for one of the police unions, the Police Benevolent Association. I have subsequently been in private practice. Approximately 20 to 25 percent of my practice is labor law. I represent employees against management in Dade and Broward County, andl've had experience in administrative hearings, as well as in criminal trials. I've represented police officers in criminal charges. I've represented individuals who were members of a diversity of unions, including AFL-CIO (American Federation of Labor and Congress of Industrial Organizations), so I have a heavy background in administrative hearings. But in addition to that, my role here today is not to necessarily be a criminal defense attorney, but to provide my legal advice, knowledge, and expertise to your City Manager on a pro bono basis to assist him in whatever he deems necessary and within his capacity to present before you the evidence in a matter that will make it more expeditious and will elucidate the key points that brings this case forth for termination. Now you did bring something up about my clients, andl can tell the Commission I've represented doctors, lawyers, on occasion I've represented judges. I've represented a variety of people in many different fields. I also represent a lot of pro bono clients, including young men who are charged with very serious crimes. You mentioned something about the gaming industry. I don't represent the gaming industry. I have represented individual clients who had interest in gaming machines or maybe in gaming emporiums, andl can probably tell you that none of them has ever been convicted of anything. I have no conflicts with the City ofMiami. I do want you to know that I've represented employees of the City ofMiami, andl've represented and provided legal counsel to elected officials of the City ofMiami. However, at this time, I believe legally and ethically I have no conflict whatsoever on any matter. There is the matter of some money that may be owed to me by the City ofMiami, but that is not an issue before the Commission, and it is not in conflict with any matters that I've been called upon by the Manager to represent him and give my legal advice. Commissioner Sarnoff. Well, wait a minute. Vice Chair Carollo: Yeah, right. Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: There I may have an issue because I know -- City ofMiami Page 101 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. Yeah. Vice Chair Carollo: -- as an -- Commissioner Sarnoff. Now I didn't know -- Vice Chair Carollo: Right. Commissioner Sarnoff. You represent people first off who have been charged with running maquinitas? Mr. Milian: No criminal charges. Andl think you mean the gaming machines. Commissioner Sarnoff. Civil -- I don't care if it's criminal or civil. You have represented people who have been either civilly penalized or criminally charged with the operation of illegal maquinitas? Mr. Milian: I've represented individuals who've had machines seized by the City ofMiami. Commissioner Sarnoff. And you also are owed money by the City ofMiami? Mr. Milian: There was a time when there was a claim put in to the City ofMiami. It was subsequently withdrawn for the representation of an employee of the City ofMiami who was exonerated in a matter outside of this jurisdiction. Commissioner Sarnoff. Wait. I heard you say a moment ago that you were owed money by the City ofMiami. Mr. Milian: I was owed at one time. There was a claim pending. It has subsequently been withdrawn. Commissioner Sarnoff. Okay. Can somebody show me the document that this has been withdrawn? Mr. Milian: Well, Commissioner, I'd like you to take my representation because I was the party at interest. Commissioner Sarnoff. That's a big conflict to me, because I'm not going to vote for you to do anything. You may present, but you're not going to get me by resolution approving it because -- Mr. Milian: It's not before the Commission. Commissioner Sarnoff. Well, I got to tell you, who the Manager chooses is his own decision. But you've come before us, you've saidl was owed money by the City ofMiami. That's an issue. And then you say I've represented people who operated maquinitas. That's a whole different issue. Mr. Milian: That's true. Commissioner Sarnoff. And you're doing it pro bono, which is a whole different issue. And I'm not sure judgments are very -- are being used extremely well or articulately here today, but I'm not going to vote in any kind of shape or form for you to represent any interest of the City of Miami when you made those representations. City ofMiami Page 102 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Well, Commissioner, forgive me, but earlier today the Manager was criticized for not having an attorney. The City Attorney is declining to represent him in his capacity as a Manager, so he's being left out there without any legal representation. As long as I ethically do not have any conflict with any interest of the City, I can represent him or any employee of the City. And I've represented to you that have no conflicts whatsoever with the City. I have no -- Commissioner Sarnoff.. But you said -- Mr. Milian: -- pending claims against the City. Commissioner Sarnoff.. Here's what you said. You said you're representing the citizens of the City ofMiami, and you're not going to do so under my watch, not after the representation you -- Mr. Milian: Well, that's fine, Commissioner. Commissioner Sarnoff.. -- made. Mr. Milian: I accept your judgment, but I am telling your fellow Commissioners that there is no conflict. Now if you want to latch on to that -- I mean, I've represented police officers in the past of the City of Miami. I've represented a multiplicity of people that work for the City of Miami, and I've sat on boards for the City ofMiami. Andl was trying to paci the Commissioner's concerns. But have no pending conflicts with the City ofMiami, no pending claims. I have had that representation in the past. Just like at one time I was an employee of the State of Florida, now I represent people accused by the State of Florida andl have no conflict, even though in the past was paid by the State of Florida. So I think that think clears it up pretty much, andl did seek my own legal advice to make sure that didn't have any conflicts whatsoever. Commissioner Sarnoff.. How'd you do that? Mr. Milian: Well, we attorneys have been known to go to other attorneys to seek legal advice to make sure we don't have conflicts. Commissioner Sarnoff.. Did you check with the Florida Bar? Mr. Milian: Commissioner, I'm not going to really get into -- because I think those matters are privileged between me, my conscience, and my bar license. But I can represent to you that I have no conflicts at this time with the City ofMiami andl have no pending claims against the City ofMiami. Chair Gort: Yes, Ms. Jones. Commissioner Spence -Jones: I don't want to -- did you want to -- I just -- did you have something you want to --? Vice Chair Carollo: I could follow up or I could yield to you. I'll yield to you. Commissioner Spence -Jones: I just want to -- in the end of this, I want to be fair to Johnny. And I don't want a decision to be made and then there's a cloud of -- any cloud of whatever on it, Johnny. I believe Mr. Manager deserves to have representation, but I don't think we want to have a decision be made and then there's going to be a question afterwards as to whether or not you really had the right to do it. Andl mean, I would not have an issue with you taking an hour to do that. That's why I'm saying take the hour so you could at least make sure your client is represented properly, but I'm just telling you, even after that, there's still going to be some question as to whether or not this had some murkiness around it. Andl think that, Mr. Manager, you don't deserve to have something that has any murkiness around it. Because no matter what City ofMiami Page 103 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 up here, that's still going to be in everybody's head that there is perhaps some conflict there and you know that's not fair for him. Mr. Milian: Well, Commissioner, I can assure you that as an attorney and a practicing attorney in the state of Florida, I've consulted with my clients and I've disclosed my prior history -- Commissioner Spence -Jones: I know. But you know, as my -- as Commissioner Suarez said earlier -- and believe me, I understand that more so than anybody else -- it's not even about whether or not it's an issue right now. It's the perception of it. And sometimes perception creates the environment. Mr. Milian: Well, I'm here to dispel any perceptions you all may have -- Commissioner Spence -Jones: I know. Mr. Milian: -- by representing to you as an officer of the court that there is no conflict at this time. Commissioner Spence -Jones: I know. I'm actually talking to Mr. Manager. I just don't want you to have an issue in the end. So if you -- if the Commission is fine with taking an hour -- but I'm just telling you in the midst of it, this is going to constantly come up because everyone already feels obviously very strongly about whatever conflict there could be. Mr. Milian: Okay, butt just want you to know, Commissioner, that I'm not here on trial. I'm here to provide legal counsel -- Commissioner Spence -Jones: I understand that. Mr. Milian: -- perhaps cross or direct examination. Commissioner Spence -Jones: You don't have -- Mr. Milian: Okay. Commissioner Spence -Jones: You're preaching to -- you don't have to explain that to me. Mr. Milian: I understand. Commissioner Spence -Jones: I fully understand that. I'm just -- I'm not even talking to you now. I'm talking to -- 'cause at the end of the day, you're going to leave out. You're going to go on with your life, but Mr. Manager is still going to have that cloud on, you know -- I can imagine what tomorrow's stories are going to be, okay. I could just imagine everything that's going to start floating around around this issue when it shouldn 't be that. He shouldn't have to have that additional pressure of presenting his case and then having to deal with you as his representative . I think that's unfair to him. Mr. Milian: Well, I think that -- Chair Gort: Okay. Mr. Milian: -- I will take the time to explicate all of the intricacies, as I think any good lawyer does, more so than I've already done and ultimately let the Manager make that decision. Commissioner Spence -Jones: Okay. City of Miami Page 104 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: And based on my representations to you and specifically to Commissioner Sarnoff that do not have any conflicts with the City in this matter and that I'm representing or giving representation to the Manager in lieu of the fact that the City Attorney's office can't or will not represent him at this time. Commissioner Spence -Jones: Okay. Vice Chair Carollo: Mr. Chairman. Chair Gort: Okay. Yes, sir. Vice Chair Carollo: Thank you. One of the reasons that I asked those questions, Mr. Milian, is 'cause I want to make sure that there are no conflicts and, yes, definitely before. That's why I asked, you know, before we went into the break, before more testimony is given and so forth. Now I know you're saying that there's no conflict. I just want to ask a little further and elaborate a little bit more. First of all, you said that you're owed money by the City of Miami. Then you stated that at one time you were owed money. Are you currently owed money by the City of Miami? Mr. Milian: No. Vice Chair Carollo: Okay. And I'm sure you see -- or I'll go outright and tell you. You know, if I am owed money from a client, I can't go and do another audit. It's a conflict of interest. Why? Because you're representing Johnny to make sure that you get paid by the City ofMiami. So that would have been a conflict. Mr. Milian: That claim has been withdrawn. It was valid at one time. It has been withdrawn. Vice Chair Carollo: It has been. So you are not owed money? Mr. Milian: Not -- as I speak with you today, no. I have never presented any claims that are current to the City ofMiami. Vice Chair Carollo: Second thing want to ask, with regards to you acting as the attorneys for individuals that have been arrested or had issues with maquinitas in the City ofMiami, are any of those cases still open? Mr. Milian: The civil cases and some cases are in fact -- some of them are still open. Vice Chair Carollo: Are -- were the arrests or -- do they have to deal with any of these officers? Mr. Milian: Arrests? I said there were no arrests. Vice Chair Carollo: Okay. Mr. Milian: The cases that I'm involved in are civil cases right now. Vice Chair Carollo: Well, you know, I guess I didn't hear you clearly, but at the same time, there could be an arrest and be a criminal proceedings, and then there could be civils after that so that's why -- Mr. Milian: But, Commissioner, let me clarify before we go too far afield on this conflict thing. I've represented actually prosecutors while I have been defending cases against the same State Attorney's office. The conflict would come to exist ifI was improperly representing somebody whose interest was adverse to one client. Andl have taken steps today when I was called upon City ofMiami Page 105 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 by the City Manager to make sure that that was not the case. Other than that, there's nothing else that I can tell you. I am not going to regurgitate here any histories of any of my clients. I will not divulge any attorney -client privileged information. I believe in good faith and basis I have no conflict whatsoever in my representation of the Manager. On the contrary, I think my personal beliefs in my position are quite in harmony with the Manager's position and in the best interest of the City ofMiami. Others may disagree with that. But as far as legal conflict, there is none at this time. Vice Chair Carollo: And I'd like to ask my City Attorney with regards -- do you see any legal conflict? Ms. Bru: And first of all, I have to accept -- he is an officer of the court, and it is his responsibility to determine whether or not he has a conflict, and he has represented to me that he doesn't. I trust him. If he is not being forthright, he has a problem with the Bar, and that's his problem. But, no. I mean, I'm taking -- you know, he's an officer of the court. He doesn't -- and he's represented that he has no legal conflict. Vice Chair Carollo: And the last thing l just want to state for the record. Again, something that my colleague, Commissioner Spence -Jones, first stated at the beginning of this meeting was as far as the timing and so forth. And realistically, it's not that we criticized him for not having legal representation. I think kind of mentioned his judgment of whether if he felt he needed legal representation, then he should have had it. He felt he didn't need to. He's acting as a prosecutor, and in his judgment, he didn't bring legal representation. Therefore, I guess, he took our advice finally for once and gained legal representation, which, again, I've known you for many years so I'm happy to see you here. I just want to make sure that everything is kosher and we'll move forward. Andl don't have a problem then if the will of this Commission is to move forward and -- Mr. Milian: But Commissioner, to be fair, in 24 years in handling these types of cases, I have never not seen the city, the municipality, or the county provide the legal representation. City managers are not necessarily technical experts themselves. They rely on the advice and assistance of people around them, whether it be the head of sanitation or the police department, and that's why there is a chain of command and those instructions have to be followed. Andl can represent to you that the City Manager sought advice and orientation on that matter and was not made aware that an attorney would be required to, in effect, handle the legal aspect. Again, past practice and procedure throughout law enforcement departments in the southern United States has been that the prosecutor who acts in a termination case is a municipal attorney or an attorney from the county or an attorney hired by the county to handle those particular cases. In the case ofMiami-Dade County, the CityAttorney's office -- the County attorney handles those cases. So I think that the Manager was not apprised or was given incorrect advice about the role of having a legal prosecutor here in effect to handle this arbitration matter or this labor case. So it wasn't that the Manager's judgment was bad. It's perhaps he was not receiving the advice that the City Attorney's office would not be representing the City's interest. Vice Chair Carollo: When you say he was receiving incorrect advice, incorrect advice from who? Mr. Milian: Well, I think that the only legal advisors that you have here is the City Attorney's office andl think -- Vice Chair Carollo: So you're saying he was receiving incorrect advice from our City Attorney? Mr. Milian: What I'm saying is that if the City Attorney's office decided that they will not prosecute a labor matter before this Commission, they needed to explicitly advise the Manager of that and tell him that he needed outside legal counsel. City ofMiami Page 106 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: Did he ask that? 'Cause I -- Mr. Milian: Well, I don't think that the Manager's on trial here, with all due respect but -- Vice Chair Carollo: No. I know, but he's acting as the prosecutor and, you know, we're here after halftime and all of a sudden you come here and you ask us for an additional hour when we just took two hours of recess. So I think it's reasonable that I question this. And yes, once again, I can tell you this. IfI was sitting in that chair, I would have been ready. I would have known exactly if this legal attorney doesn't give me the right thing, I'll go the second or third or fourth or fifth opinion. I would have been ready, you know. And it's clear that he was not. And again, in his judgment, he thought he had cause to suspend the Chief and he did. He started this procedure. He started this procedure and, in all fairness, he knows what the Constitution -- the state -- what's it called? Mr. Milian: The Charter. Vice Chair Carollo: -- Charter says. What the state -- I'm sorry, what the City Charter says. Chair Gort: City Charter. Mr. Milian: That's okay, Commissioner. Vice Chair Carollo: He knows he has within five days. He had five days to be ready. Mr. Milian: Commissioner -- Vice Chair Carollo: He started this procedure. Let me ask you something. I forgot what was the dates. From the dates that you felt the Chief was insubordinate to the day that you actually did the suspension, how many days went by? Mr. Milian: Commissioner, the issue here right now is not that. Chair Gort: Excuse me. Mr. Milian: The issue is would you allow him -- Chair Gort: Excuse me. Mr. Milian: -- to have legal representation. Chair Gort: A question's been asked of the Manager. Vice Chair Carollo: How many days went by? Mr. Martinez: There was reasons for that 'cause some Commissioners were not available, some were on vacation, some were on during trial, so I tried to -- the Chief was on vacation, so I tried to pick a day where everybody was here. Vice Chair Carollo: I understand. So it's fair to say this isn't something criminal that the Chief did, right? This isn't something criminal that he did, correct? He's not a menace to society. If we waited a few more days or if we waited a few more weeks or something, something that could have been acceptable, right? Mr. Milian: But there are limitations imposed upon him. City of Miami Page 107 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: If you felt that you weren't getting accurate representation or you felt that you didn't know exactly what were the procedures, you could have actually extended the suspension until you felt it was time to suspend. So you know, coming in after -- I would like to say halftime 'cause it's way after, you know, lunchtime and so forth -- with an attorney where now we have to, once again, wait another hour and so forth. I think, you know, it's a little unfair on us, and it goes back to, you know, what Commissioner Spence -Jones said from the beginning. Mr. Manager, you know, I asked you, could we, you know, extend this or -- and what I mean extend, extend the time before we deal with this issue. You know, we have the budget hearings. Anyways -- Chair Gort: Okay. Vice Chair Carollo: -- with that said, I'm going to rest, for lack of better terminology. Andl guess, you know, if this is the will of the Commission to, you know, have a one -hour recess, then so be it. Commissioner Sarnoff. Mr. -- let me -- me? Chair Gort: Sure. Go ahead. Commissioner Sarnoff. Here's my problem, Mr. Milian, because you said earlier you've represented people against the City ofMiami before and even said you -- let me finish -- you were owed money but then you decided you weren't owed money. You will represent people against the City ofMiami again, correct? Mr. Milian: It depends on the case, Commissioner. Commissioner Sarnoff. Well, you're available. Chair Gort: It could happen. Commissioner Sarnoff. You hold your shingle out there. I look forward to taking on some new cases against people against this big, bad City, right? Mr. Milian: It depends on the case, Commissioner. Commissioner Sarnoff. Meritorious case, you're going to take it. Mr. Milian: Not necessarily, Commissioner. Commissioner Sarnoff. Okay, but here's my problem. And this goes to 4-1.7, and this goes to 4-1.8 of our bar ethic rules. If you represent him and you're successful or even unsuccessful but he's satisfied with you, he can resolve a case with you in the future and therein lies the conflict of interest, not only the direct conflicts but the appearance of a conflict. And had you said to me under no circumstances, Commissioner, wouldl ever take a case against the City, I would have said, I defer to your judgment as to whether there's an ethical violation. But having said if the case is meritorious andl take it valuable to you, you will take that case, therein lies the apparent conflict of interest 'cause you'll have a manager sitting there that is beholden to you. Mr. Milian: Commissioner, I think to answer your question and the rules you were quoting, you're talking about prospectively not retroactively. My -- 80 percent, 85 percent of my work is labor cases, okay, so I don't currently represent anybody on any labor case against the City of Miami. I have represented defendants who have been arrested by the City ofMiami. I don't do civil litigation. I don't do lawsuits against the City ofMiami. City ofMiami Page 108 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. So then you would never take a case that the City ofMiami would have to defend itself? Mr. Milian: A civil suit? Commissioner Sarnoff. Any kind of suit. Mr. Milian: No. Commissioner Sarnoff. So then you've never represented anyone against the City ofMiami? Mr. Milian: I've represented people arrested by the City ofMiami in criminal proceeding. Commissioner Sarnoff. Well, yeah. You're defending them. You're not bringing a 42 US C 1983 claim, 1981 claim. Mr. Milian: Yes, Commissioner. That's why I told you I don't take those kind of cases. That's why I said it depends on the cases. I don't do civil litigation. I don't file personal injury lawsuits. I'm not in the torte practice. Commissioner Sarnoff. So you don't do civil litigation at all? Mr. Milian: No, Commissioner. The only thingl do is whatl told the Commission, the labor cases representing employees and the criminal defense work. Commissioner Sarnoff. All right. So let me go down to the employee cases. Do you take cases where employees are suing or have sued the City ofMiami? Mr. Milian: Never. Commissioner Sarnoff. And you have no intentions of doing so in the future? Mr. Milian: I've never taken a case to present a lawsuit against any municipality. Commissioner Sarnoff. Okay. Mr. Milian: And again, Commissioner, thank you for -- Chair Gort: Excuse me. Mr. Milian: -- reminding us of that, but that is a rule thatl have to abide by in the future. If there is a conflict, I have to make all parties aware of it. And if there were that conflict, then I would either have to conflict out of the case or seek a waiver of that conflict. That's my understanding. Commissioner Sarnoff. Well, no, no. I -- here's -- you may not actually have a literal conflict -- by answering your question the way you have, and that is that you're never going to take a case against the City ofMiami -- Mr. Milian: A civil case. Commissioner Sarnoff. -- a civil case --I don't know how criminally the City can be held. Mr. Milian: They're not. They just make the arrest -- City ofMiami Page 109 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff.. Right. I got you. Mr. Milian: -- and it's prosecuted by the State Attorney Office. Commissioner Sarnoff.. Having said that, you put yourself in a very advantageous position with the Manager. You're representing him pro bono. He's going to feel beholden to you, thankful to you. And as long as he can't -- as long as you can't cash in on that thanks against the citizen taxpayers, I'm okay with that. But if you can cash in on that thanks, therein lies the problem. Mr. Milian: IfI was -- Commissioner Sarnoff.. It's a chip that you'll hold in your pocket for the next. Mr. Milian: I agree with you. If was ever in that position, I would have a conflict, and would have to conflict off the case. Commissioner Sarnoff. Okay. Mr. Milian: And you're accurate on that, and we have no disagreement on that. Commissioner Sarnoff.. And that's -- and that was my point. And I'm just out of an eight -day trial defending a lawyer, and trust me -- Mr. Milian: I appreciate -- Commissioner Sarnoff.. -- it's tough. It's not easy. But want to make sure that understand Mr. Ortiz comes up to you tomorrow and says I've been fired by the Manager -- you know, one of those discretionary calls -- and you're not going to take that case against the City ofMiami? Mr. Milian: No. Commissioner Sarnoff. Okay. Chair Gort: Commissioner Spence -Jones. Commissioner Spence -Jones: I just want to say this. No matter what we do, we have to be fair and just. And the reality is Mr. Manager does not have the representation that he needs. That's obvious. So to me, I mean, I could not sit here and not allow him the same opportunity, you know, that the Chief has. So I support the Manager at least having that representation. So I just don't want -- I think it's really unfair for one side to have it -- if he had the option, I'm not sure why it wasn't communicated to him, and don't know ifJulie can speak to why the City Attorney office didn't let him know. Did you let him know, Julie? Ms. Bru: Commissioner, I view the acts that the Manager took in suspending the Chief as administrative acts. It is part and parcel of what he does day in out -- day in, day out in managing a workforce of almost 4,000 employees. There were facts that supported the suspension. You explained the facts. You make your argument to the Commission as to why the Commission should agree that those facts are indeed insubordination or failure to obey a direct order, andl thought that the Manager would be able to do that. He does have a staff in HR that includes attorneys, even though they don't practice law for the City, so you know, I did not think that he would need legal representation. It's an administrative proceeding. The Chief is entitled to his attorney because it is his due process that's at take because it's his job that's on the line. The Manager is just a managerial decision that he made. So I -- you know, no, I didn't tell him, you need an attorney. Now if he would have said, you know what, I really do need an attorney and he did this afternoon, I authorized the attorney. City ofMiami Page 110 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Okay. Commissioner Spence -Jones: Okay. All right. I just wanted to at least officially put on the record. I think that you should have -- you know, if you feel like you need to have someone speaking up regarding whatever your issue is, I think that the Commission should support that, andl think we need to take this hour to allow them to do it and then hopefully you have the information and we can address it and not be here until tomorrow morning. Mr. Milian: I agree, Commissioner. Chair Gort: Thank you, Commissioner -- Mr. Milian: Thank you very much for your patience -- Chair Gort: -- Spence -Jones. Excuse me. Mr. Milian: -- and forbearance. Chair Gort: Commissioner Suarez. Commissioner Suarez: Thank you, Mr. Chairman. Mr. Milian, thank you for -- Mr. Milian: Yes, sir. Commissioner Suarez: -- being here. I have one question relating to conflicts, and I'll accept your answer as Commissioner Sarnoff and the City Attorney have accepted your answer, and the understanding that you are ultimately responsible to the Florida Bar for whatever you do here in the future. I do have one question, andl want you to answer it as far as whether you think you have a conflict. And that's that the Chief has filed for whistleblower protection by letter predicated on the notion that the Mayor's actions or that the Manager's actions are retaliation for him prosecuting or for him -- I guess prosecuting's not the right word if they're civil, but for him confiscating a variety of different things that the City would characterize as gaming machines. And you said earlier that you represent those clients. And so my question to you is, do you think that presents a conflict for you, or do you think that does not present a conflict for you? Mr. Milian: I have checked with legal counsel, andl have checked with the people that have represented in those cases, andl can tell you that, without getting into attorney -client privilege, I have no conflict whatsoever. I thought you were going to ask me ifI would represent the Chief of Police, andl would never represent the Chief on a whistleblower lawsuit. Commissioner Suarez: Okay. No, that wasn't what was going to ask you. I was just going to ask you if you had a conflict based on the fact that he's filed for that protection on the basis that the confiscation of the machines and that you represent some of those same -- apparently some of those same clients, so that was my question. Mr. Milian: I think everybody that I represent is consistently of the position that the Chief should be removed, so I don't have any legal conflicts with anybody. Commissioner Suarez: Okay. Mr. Milian: But more importantly, what Commissioner Sarnoff was referring to, a conflict of interest, whether my representation of one client would be adverse to the interest of another or vice versa, andl have taken all the, I think, appropriate legal steps that I'm aware of to ensure City ofMiami Page 111 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 that have no conflict. And have gone beyond and sought waiver of any conflict from any client who thought that by representing the Manager in that capacity would represent a position adverse to their interest. Commissioner Suarez: That's acceptable to me. Thank you. Mr. Milian: Okay. Chair Gort: Okey-doke. Back at 6. Mr. Milian: Thank you, your Honor. Mr. Chavez: Excuse me, Commissioner. Vice Chair Carollo: Mr. Chair. Mr. Chavez: I just wanted a housekeeping order. All that's left is a rebuttal case, correct? Chair Gort: Yes. Mr. Chavez: Just a matter of housekeeping. Chair Gort: Yes. Mr. Chavez: Thank you. [Later... Mr. Chavez: I'd like to -- Chair Gort: Yes. Mr. Chavez: -- point something out and perhaps make a motion to disqualifi, opposing counsel. During the discussions with the Commission, he -- opposing counsel, Mr. Milan, said that the people he represents are those who believe the Chief should be discharged. Along with that, he represents some in the gaming industry, which is the subject matter of various other forfeiture actions or some type of actions that either are pending or were pending, but he represents those individuals. So the real conflict of issue -- andl want to point it out to you and I'm bringing it by way of a motion to disqual -- is the City has already indicated here that -- and their position has been there is some control over the Chiefs office at the police department. So ultimately, the real conflict of interest here is if the City Manager's office has some control, then the next Chiefs that to be appointed would be friendly to the gaming industry. Again, I reiterate a motion to disqualin, by pointing out that potential for conflict of interest. Chair Gort: Okay. Mr. Milian: If you need any response, I'll be happy to respond to that. But I mean, it seems silly to me. I don't know who the next Chief of Police is going to be, and I have no say or involvement in that selection process, nor do I do any business with the Chief of Police of the City ofMiami nor have I done any direct or indirect business. As I explained to Commissioner Sarnoff when he inquired, I think the relevant issue was, is there any witness in this matter or any party at interest in this matter that have a conflict with that I've represented in the past. Andl continue to say thatl do not. Commissioner Sarnoff.. Well, let me ask you this -- Is it all right, Mr. Chair? City ofMiami Page 112 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Sure. Commissioner Sarnoff. Let me ask you this question, Mr. Milan. Mr. Milian: Yes, sir. Commissioner Sarnoff. You represent the gaming industry andl -- do you represent anybody that presently has any confiscated machines? Mr. Milian: I have represented people who have had machines confiscated by the City ofMiami Police Department. Commissioner Sarnoff. Okay. And those people would like to get their machines back, correct? Mr. Milian: Well, I assume that anybody who has had property confiscated, if it's not contraband, would like to get it back, Commissioner. Commissioner Sarnoff. And the City Manager has now demonstrated control over the Chief of Police, so if he feels beholden to you as a result of your pro bono beneficial work to him, he could theoretically instruct the Chief of Police, should he like to keep his job, to let your clients have their maquinitas back. Mr. Milian: I -- we're getting into a hypothetical within a hypothetical. Commissioner Sarnoff. But that's exactly what we do as conflicts of interest. Mr. Milian: But I think that those forfeiture decisions are made in a civil proceeding in a court of law before judges that are not employees of the City ofMiami, but are employees of the state of Florida. If that were the logic, then I would be disqualified in every case I defend anybody before the courts of the state of Florida, because at one time I was an employee of the state of Florida. Commissioner Sarnoff. Well -- Mr. Milian: And there are judges now that serve with me as public defenders or prosecutors -- Commissioner Sarnoff. Help me out with this because -- Mr. Milian: Okay. Commissioner Sarnoff. -- there are machines presently in the City ofMiami's possession, correct? Mr. Milian: I would assume that some of them are in the City's possession. Commissioner Sarnoff. Care, custody, or control, right? There are machines in our care, custody, or control in a warehouse somewhere. Mr. Milian: I think that would be a safe bet. Commissioner Sarnoff. Your clients have machines that are within the City of Miami's care, custody, or control. Mr. Milian: I believe that that is the case. City ofMiami Page 113 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. It is not hard to imagine that your clients want their machines back, correct? Mr. Milian: I think some of those clients do want those machines back. Commissioner Sarnoff. So if you continue to represent this City Manager, isn't he going to feel -- I don't know if the word is beholden, emboldened, like owing you a debt of gratitude such that you could exert influence over him? Mr. Milian: No, because, Commissioner, if you would like -- first of all, I've told you that I have never done any business with any City Manager of the City ofMiami. I've known a lot of them -- Commissioner Sarnoff. I don't think it's -- Mr. Milian: No, wait a minute. -- but I've never dealt with any City Manager on any of my cases, never in my career. But if it makes you more comfortable, Commissioner, because I know you're doing this in abundance of caution -- and Commissioner Spence -Jones was very articulate in stating that we didn't want there to be any issue remaining -- I'll be happily to disqualify myself from handling any of those forfeiture cases against the City ofMiami as long as this gentleman is the City Manager. Is that fair? Commissioner Sarnoff. I'd like -- Mr. Milian: So there could be no conflict of interest. Commissioner Sarnoff. -- to hear you say that you will not handle any forfeiture cases against the City ofMiami for the next five years. Mr. Milian: You got it, Commissioner. That's fair. Commissioner Sarnoff. Okay. Mr. Milian: I don't have a problem with that. Andl believe that this matter is important enough and you've been gracious enough to grant us the time to prepare and we're all here and we're prepared to go forward. And if that makes you Commissioners feel more comfortable, I will be happy to say on the record as an officer of the court that in the next five years, I will not handle any forfeiture proceedings against the City ofMiami. Is that fair? Commissioner Sarnoff. I'm trying to think if that covers everything. But yeah -- Mr. Milian: You're being a good lawyer, right? Commissioner Sarnoff. -- I like the length of time. But I think -- Mr. Milian: Well, five years is more than elected officials -- Commissioner Sarnoff. No. I think you're -- Mr. Milian: -- are required to -- Commissioner Sarnoff. I agree with you. Mr. Milian: -- have conflict so -- City ofMiami Page 114 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff.. But I'm trying to think if just a forfeiture -- if we just describe a forfeiture and we just limit the universe to that, I'm just trying to think of any reason or any circumstance under which you could represent a person associated with that particular branch of service, and I'm trying to be real nice about it, whether that encompasses every action they can bring against the City ofMiami. I'm just trying to keep you at not having an advantage. Mr. Milian: I appreciate it. And you know, let me tell you something else. As you well know because you're well versed on the rules for the Florida Bar, whenever I represent a client, I have to disclose to that client if I've represented any witness in the past or any party with an interest in the matter. That's my ethical obligation. Andl believe Commissioner Suarez alluded to that as well. It is my obligation to disclose to both parties, hey, I represented this person in the past or that person. Andl have two options under the Florida Bar, as I understand it, and correct me if I'm wrong. I can seek an affirmative waiver of the conflict, and that has happened on occasion. Commissioner Sarnoff.. I'm less speaking in terms of conflict and more of advantage. It could be seen as a tactical advantage for you to have said you've represented our City Manager in an action that was either successful or unsuccessful but he was very pleased with my representation. That could be a calling card for some lawyers so -- Mr. Milian: It's a calling card that I've been a prosecutor. It's a calling card that -- Commissioner Sarnoff.. Right. Mr. Milian: -- I've represented a lot of -- Commissioner Sarnoff.. Absolutely -- Mr. Milian: -- high profile cases, but I don't look at it that way. I think the actual conflict arises between the interest of the individual clients that come into the litigation if they're witnesses or they're adverse parties. And I've had this happen before in prosecutions. I've had prosecutors try to disqualin, me by placing witnesses that I previously represented in a criminal matter. Commissioner Sarnoff.. You know, I could tell you what the Third DCA (District Court of Appeal) has done in this circumstance on a parallel basis. And that was when one of the attorneys that represented the University ofMiami left the University ofMiami and went to work for the biggest plaintiff lawyer in Miami. And they had given him a five-year window upon which he could not represent any plaintiff against University ofMiami School of Medicine. So I'm just paralleling what they do because they saw it as a tactical advantage understanding how that administration, how that medical society worked. So with what you said, and if you're not going to take a maquinita case with the City ofMiami for the next five years, I'm comfortable. Mr. Milian: I not only said maquinita. You asked me, you know, forfeiture cases. Commissioner Sarnoff.. Gaming, okay. Mr. Milian: Yeah. I mean, I think you made it pretty inclusive and that would satisfy the members of the Commission. No forfeiture cases. And I'm telling you right here, right now, and I'm telling before the public that I am not taking any forfeiture cases in the next five years. In reality, in the last five years, I haven't had any cases -- Commissioner Sarnoff.. Okay. Mr. Milian: -- that have gone to any kind of litigation with the City of Miami, but I'm giving you that assurance if that will make the Chairman and the rest of the members here satisfied with my representations. Is that good, ladies and gentlemen? City ofMiami Page 115 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. Yes. Mr. Chavez: Mr. Commissioner -- Chair Gort: The attorneys. Mr. Chavez: -- does that apply to the current cases that might be pending with this gentleman? Commissioner Sarnoff. Those are the current cases as well, correct? Mr. Milian: Commissioner, I'm not trying to -- Commissioner Sarnoff. Right. You're not -- Mr. Milian: -- dazzle you with my legal brilliance here. I feel pretty satisfied that that's inclusive of any pending cases right now. Mr. Chavez: Okay. Mr. Milian: I will recuse myself from further representation of those clients. Mr. Chavez: Andl understand that those cases, none of them are civil forfeiture cases or forfeiture cases. They're actually contraband cases. Mr. Milian: I don't know if they're contraband or not. That's the whole issue in a forfeiture case, whether it's contraband or not, and that's what a judge is there to determine. None of those cases have been completely litigated or been final judgment to my knowledge. So I am telling again the Commissioners here -- andl can say it in Spanish as well -- that will not participate in the next five years in any forfeiture cases against the City ofMiami. Commissioner Sarnoff. And with him saying contraband, what type of cases do you represent against the City ofMiami for contraband? Mr. Milian: I think the issue always is in cases where there's money confiscated and the issue goes when you're before a circuit court judge whether that -- in effect that money -- is it the ones that I've known in the past is in fact contraband or not. And the burden is always on the City if they're seeking to forfeit that money. Commissioner Sarnoff. So you are going to continue to represent people with regard to forfeiture in contraband cases? Mr. Milian: No. Commissioner Sarnoff. Okay, so we're clear on it. Mr. Milian: I don't know how -- you tell me the language you would like me to adhere to and I'm saying I'm not representing -- only in the City ofMiami, not in Dade County -- Commissioner Sarnoff. Right, right. Mr. Milian: -- in the City ofMiami in any forfeiture cases in the next five years -- Commissioner Sarnoff. Okay. City ofMiami Page 116 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: -- which by then maybe I'll move on to bigger and better things. But does that satisfy everybody or, Commissioner, would you -- Chair Gort: Satisfies me. Mr. Milian: -- like any further qualification? Mr. Chavez: Mr. Commissioner, I would only like to preserve my objection in that regard in that we haven't gotten any case numbers. We don't know the specific type of cases we're talking about, the contraband cases. I would imagine that there's no real way to follow up on whether or not there's going to be a withdrawal from those cases, and it's just simply a representation here where the subject matter at issue is my client's procedural due process rights. Mr. Milian: Well, in structural defect, according to the United States Supreme Court and Justice Scalia, to deny somebody their attorney of choice, even on a conflict case -- in one case that had out of the Fourth District Court ofAppeals, in that case what the judge did was make an inquiry of a witness that would have been a prior candidate or client of mine and had been exonerated. And in that case, the Fourth District Court ofAppeals upheld the circuit judge and said that my client at that time had a right to be represented by me. Commissioner Sarnoff. I think we're all mis -- I think you and I know what we're saying -- Mr. Milian: I think so. Commissioner Sarnoff. -- andl don't know if the rest of the audience does. I don't want you gaining a tactical advantage. Not that I -- Mr. Milian: I respect that. Commissioner Sarnoff. -- think there's a conflict because you know something that can harm the Chief. I don't think you do. But I don't want you gaining a tactical advantage with this Manager or this Administration having come in as the white knight and saved the day for them so that you can then in the next five -- you've agreed not to for the next five years. Mr. Milian: Next five years. Commissioner Sarnoff. I'm trying to preclude that from happening, andl think it helps the citizen taxpayers of the City ofMiami 'cause I don't want a lawyer feeling -- a lawyer being able to sell his wares saying, look, I've represented the City Manager, got this great result, andl can get your machines back. I can do this; I can walk on water in the City ofMiami. Mr. Milian: I don't think that would ever be the case, but I think until the year 2015 on this date Commissioner Sarnoff. Right. Mr. Milian: -- that I've given you my word and my representation that -- Commissioner Sarnoff. Okay. Mr. Milian: -- will not, and so be it. I've made this choice. I had consulted on the matter and that's my representation. Andl think that's pretty much the end of the story. Chair Gort: Okay. City ofMiami Page 117 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: I'm sorry, 2016, no? Mr. Milian: Yeah. You caught me, Commissioner. You caught me, but you're right. Chair Gort: Okay. Mr. Milian: Mr. Chairman, may we proceed? Chair Gort: Yes. Mr. Milian: First of all, I want to thank you for the patience and the graciousness in allowing our time to allow me to come up to speed on some of these matters. And as the first witness that we'd like to call in rebuttal would be Chief Roy Brown, assistant Chief of Police of the City of Miami. Mr. Chavez: Mr. Commissioner, ifI may, I'd like a proffer from the attorney specifically as to what portions of my case in chief this witness was going to rebut. Mr. Milian: Commissioners, we could be proffering a case all day long. I think that the proper procedure is to hear the testimony and you decide as the triers of fact what weight to give to that testimony. I think at issue in this particular case -- and I'll be very brief 'cause I don't think a proffer has to be placed before every witness is introduced -- is a matter of what happened in the police department reference three high-ranking members and the denials of the Chief that this was an improper action or an action insubordinate of the City Manager. That's the critical issue here. And Chief Roy Brown, besides being an individual who's been nearly four decades in that police department, is one of the most directly affected members. Ultimately, I know that you stated publicly your concern is for the health and well-being of the citizens but also for the functioning of that police department. And I think not only is Chief Brown a veteran, a man of great integrity, but is also one of the highest-ranking African American executives in the police department. Andl think that his testimony is going to elucidate to you the circumstances and it's inextricably intertwined to what happened in this particular case, which led the City Manager to take his actions. Mr. Chavez: Again, Mr. Commissioner -- Chair Gort: Thank you. Mr. Chavez: -- I just want to preclude the fact that -- or point out the fact that the City Manager rested his case in chief and this is merely a rebuttal, and I'm asking specifically for a proffer as to what testimony -- his testimony seeks to rebut, andl will be making objections in that regard throughout the testimony when it falls outside -- Chair Gort: Okay. Mr. Chavez: -- the scope of my examinations of two witnesses. Chair Gort: Okay. Commissioner Suarez: Mr. Chairman, thank you. Chair Gort: Yes, sir. Commissioner Suarez: I just want to ask the City Attorney a question. Are we following the strict rules of evidence in this proceeding or is this some --? City of Miami Page 118 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Ms. Bru: Yeah. This is a quasi-judicial proceeding, not a judicial. The difference is in a quasi-judicial proceeding you do not adhere to the strict rules of evidence, and you are free to consider whatever testimony in whatever order you choose to consider it. Commissioner Suarez: I think we've been very liberal in terms of what we've allowed to this point in terms of testimony, so I don't think we should change the standard right now. Mr. Chavez: Mr. Commissioner, on that point then I would also reserve -- Chair Gort: You can rebuttal. You get a chance. I mean, we're -- Mr. Chavez: -- an additional right to do that. Chair Gort: -- sitting here as judges. We'll give you a chance. And there after a while we might ask you attorneys to come up. Mr. Chavez: Thanks. Chair Gort: And what's the phrase? Mr. Milian: Sidebar. Mr. Chavez: Sidebar. Chair Gort: Yeah. We'll have a sidebar every once in a while. Commissioner Sarnoff. Look, give him a sidebar. He's been looking for a sidebar. Chair Gort: If you want a sidebar, that's no problem. Commissioner Suarez: Are we going to put some limitations -- Chair Gort: We're getting there. Commissioner Suarez: -- on this. Mr. Chavez: Your Honor, sidebar. Mr. Milian: Well, the only thing is here we're subject to public records, but there surrebuttal, as Commissioner Gort pointed out, if that should arise, and as some of you are members of the bar are well aware. But if -- without much ado or further ado, may I call the Chief? Chair Gort: Sure. Mr. Milian: Assistant Chief Roy Brown. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: And as a question, is the City Manager going to speak anymore or say anything anymore or is it just going to be you? Just as -- you know, are you going to now present everything, be presenting the whole case or --? Mr. Milian: Commissioner, I think I'll be acting in the stead as the representative for the City City of Miami Page 119 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Manager in the remaining of the proceedings. Vice Chair Carollo: Okay. Mr. Milian: Chief Brown. Will it please the Commission, where would you like the Chief to take a position to lend his testimony? Mr. Chairman, would you like the witness to be placed under oath? Chair Gort: They already been under oath. Mr. Milian: Okay. Mr. Chavez: Can we confirm that with the Clerk, Mr. Chairman? Ms. Thompson: Yes. We've already administered oath to Chief Brown. Mr. Milian: Sir, would you please state your name, spell your last name for the record? Assistant Police Chief Roy Brown: Roy Brown, last name spelling, common spelling, B-R-O-W-N. Mr. Milian: And Chief would you be kind enough to tell the Commissioners what is it that you do for a living. Assistant Chief Brown: I'm an assistant Chief with the City ofMiami Police Department. Mr. Milian: And how long have you been a law enforcement officer? Assistant Chief Brown: For 36 years. Mr. Milian: And in that capacity, would you briefly tell the Commissioners what assignments you have had with the City ofMiami Police Department. Assistant Chief Brown: Investigations, K-9, patrol, beat, motors, andl guess my current assignment, chief of the administrative division. Mr. Milian: Now Chief let me ask you this following question. In the years that you've been working as a law enforcement officer for the City ofMiami, have you been subject to evaluations? Assistant Chief Brown: Yes. Mr. Milian: Have you been subject to promotions? Assistant Chief Brown: Yes. Mr. Milian: And would you briefly tell the Commissioners briefly the chronology of your promotions that you received as a law enforcement officer for the City? Assistant Chief Brown: Well, I've taken every promotional examination that the City has given. I've held every rank that the City has, and I've been promoted to staff positions at the commander's rank, major's rank, and currently the assistant Chief. Mr. Milian: And in those positions in your years of law enforcement experience, have you also had the experience of both being supervised and supervising in a leadership position? City ofMiami Page 120 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Brown: Yes, at several levels, starting at sergeant and up to the position I am now. Mr. Milian: What is your current position with the City ofMiami Police Department, the staff position that you currently hold? Assistant Chief Brown: Assistant chief. Mr. Milian: And what do you supervise, if anything? Assistant Chief Brown: I supervise the administrative division, which consists of the training unit, the budget unit, patrol -- support services, personnel, and building maintenance which is, I guess, a part of support services. Mr. Milian: Have you also had occasion to supervise Internal Affairs? Assistant Chief Brown: Currently, I'm temporarily assigned as supervisor oflnternalAffairs. Mr. Milian: And would you tell the Commissioners who assigned you to that position? Assistant Chief Brown: The current acting Chief. Mr. Milian: And who would that be? Assistant Chief Brown: Major -- Manny Orosa, acting Chief. Mr. Milian: Now before you took over that particular position under acting Chief Orosa, would you tell the Commissioners what assignment did you hold under Chief Exposito? Assistant Chief Brown: Assistant chief of administration up until August 8. Mr. Milian: And up until that time of August 8, Chief had you ever been disciplined by Chief Exposito? Assistant Chief Brown: No. Mr. Milian: Were you ever called in by Chief Exposito and given a statement of counseling? Assistant Chief Brown: No. Mr. Milian: Were you ever called in for any disciplinary action by Chief Exposito? Assistant Chief Brown: No. Mr. Milian: Were you ever given any written reprimands by Chief Exposito? Assistant Chief Brown: No. Mr. Milian: At any time were you given any written communications that your performance in your role under Chief Exposito was substandard? Assistant Chief Brown: No. Mr. Milian: Were you ever notified in writing at any time that you were under any kind of City ofMiami Page 121 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 administrative or any kind of criminal investigation? Assistant Chief Brown: No, I was not. Mr. Milian: Now during the time that you have been a law enforcement officer for the City of Miami, has it been your experience, your training, on -the job training that when an officer is going to be disciplined or an officer is going to be sanctioned or an officer is going to be demoted, that that officer is given notification either verbally or in writing? Assistant Chief Brown: Yes. That's correct. Mr. Milian: And at any time were you given any kind of indication by your direct supervisor that your performance was substandard? Assistant Chief Brown: Negative. Mr. Milian: And who was your direct supervisor, if you would be kind enough to tell the Commission? Assistant Chief Brown: Chief Exposito. Mr. Milian: Now you referred to the day of August 8. Would you tell the Commissioners what, if anything, happened that was unusual on that day as far as your performance of your duties? Assistant Chief Brown: I guess I was first -- I first learned of it -- I was walking through the lobby of the station, and one of the patrol sergeants stopped me and stated -- asked hadl read the e-mail that said basically I had been stripped of all of my duties and responsibilities. Mr. Milian: And at that time, Chief had you been given the courtesy of being given any written, verbal, or electronic mail communication to that effect? Assistant Chief Brown: No. That was the first communications that received and I've received nothing after. Mr. Milian: Now, Chief let me ask you this. In your years as a law enforcement officer, have you ever seen an officer, particularly of your rank and responsibility, be stripped of his operational and administrative responsibilities and allowed to stay in that rank? Assistant Chief Brown: No. I've never seen this before. Mr. Milian: And let me ask you this. Were you eventually told that you were no longer in possession of the authority to exercise your rank, your responsibilities as a law enforcement officer given your rank, operationally or administratively? Assistant Chief Brown: No. The only communications that I've received was the e-mail that was given on August 8, which basically stated that am not to get involved with -- in any administrative decision -making or any operational decision of the Miami Police Department. Mr. Milian: Now, Chief did you consider that a demotion? Assistant Chief Brown: Yes. Mr. Milian: Now you were two stars, for the record, which denotes the category of a chief of police. And you obviously wear a uniform that we can all see here today. In effect, operationally and administratively, what, if anything, were you to do as a law enforcement City of Miami Page 122 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 officer for the City ofMiami as of August 8 in that e-mail that you received? Assistant Chief Brown: I was to do nothing. All of the work and everything that normally came to my office was diverted from my office to the Chiefs office, based on the e-mail. And myself or my staff, we didn't have any work to do. Mr. Milian: Would it be fair to say then, Chief that as of that August 8 electronic mail that as a law enforcement officer and as a chief of police, you were gutted of your responsibilities and your operational responsibilities and your administrative responsibilities? Assistant Chief Brown: Yes. Mr. Milian: Now at any time after that August 8 mail, were you ever called in for any counseling sessions to advise you of why you had been demoted? Assistant Chief Brown: No. I was never called in or neither was I ever given any other assignment or any instructions on what to do. So basically, I showed up in my office and just waited there until the day was over. Mr. Milian: Now, Chief let me ask you this. If there had been a crisis at that time in the City of Miami in our jurisdiction, South Florida, would you have been able to act operationally or administratively in any shape, form, or fashion as a police officer? Mr. Chavez: Mr. Chairman, I would object to that question. Chair Gort: Okay. Assistant Chief Brown: No, I would not have. Mr. Chavez: I would object to the last question as outside the scope of defendant's case in chief and not rebuttal. Chair Gort: Okay. Mr. Milian: May I proceed? Chair Gort: Yeah. Mr. Milian: Now understanding that, what would be your answer to the question? Or if you'd like, I would restate it, Chief. Assistant Chief Brown: Can you restate it, please? Mr. Milian: Yes, sir. Now if there had been a crisis in the City ofMiami in the jurisdictional limits of the City ofMiami where you're a sworn police officer, operationally or administratively, would you have been at that time able to act as a law enforcement officer given your rank and experience? Assistant Chief Brown: No. I was -- the instructions on the e-mail from the Chief of Police was I was not to get involved in any decision -making or any operational decisions. Mr. Milian: Did you consider that a demotion, Chief? Assistant Chief Brown: Yes. City ofMiami Page 123 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Now, Chief let me ask you, during the time that you were working under Chief Exposito, tell us about some of the issues you dealt with, especially as related to the budget. Assistant Chief Brown: I -- the budget unit was one of the units under my command, and we dealt with the overall budget, overtime, all -- I guess every issue concerning budgetary issues in the Miami Police Department came under my control. Mr. Milian: Now, Chief did you ever specifically have to deal with data regarding the overtime budget and projections of the overtime budget? Assistant Chief Brown: Well, I made the Chief aware on numerous occasions that the overtime was high compared to the previous year. Mr. Milian: Did you ever present the Chief Chief Exposito, who's the subject of this hearing, with information regarding projections on the overuse or exhaustion of the overtime budget? Assistant Chief Brown: Yes. He was -- and he was aware of it. It dates back to 2010 when there were a series of e-mails from then -Deputy Chief Cabrera; also e-mailed the Chief that the overtime had become an issue. Mr. Milian: And did you personally transmit critical projection information on the exhaustion of the overtime budget to Chief Exposito? Assistant Chief Brown: Yes. On the overall budget, prior to the July Commission hearing, I gave the Chief a report that had gotten from Ms. Shepherd, Mae Shepherd, our budget director in the Police Department, that we were currently on pace to go over our budget by $681, 000. Mr. Milian: Was it your job, duty, and responsibility in your then position under Chief Exposito to transmit that information of the exhaustion of these overtime budget figures to Chief Exposito to eventually be presented to the Manager as well as to the Commission? Assistant Chief Brown: Yes. Mr. Milian: Now, Chief to this day, have you ever been given a formal reason why this retaliatory action was taken against you? Assistant Chief Brown: The -- I did ask and -- Mr. Chavez: I would object to the term retaliatory and move to strike same from the record. Chair Gort: Okay. Mr. Milian: Well, Chief let me lay a little bit of a foundation here. As of Aug -- Chair Gort: Rephrase your question. Mr. Milian: Yes, sir. Finish it? Chair Gort: Yeah. Rephrase it. Change your question. Mr. Milian: Rephrase it, yes. That's what l was going to do in a roundabout way, but I'll be more direct as Commissioner Gort says. Did you consider the actions taken against you on August 8 retaliatory? Assistant Chief Brown: Yes, I did. City of Miami Page 124 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: And based on your training and experience and your interactions with the Chief and the budget numbers, do you have an opinion as to why you suffered retaliation? Assistant Chief Brown: The only -- although I was never told formally, and which I was left to assume or guess -- but the only two issues that could assume are that did tell the budget director that we were on pace to go over our budget and that we didn't have funds in our budget to support hiring additional police officers unless the budget was reloaded. Mr. Milian: Now, Chief you say you feel that this action was retaliatory against you. Did you feel it was retaliation to strip you of all your operational and administrative responsibilities? Mr. Chavez: Mr. Commissioner, same objection. Lack of foundation determined as retaliatory. Mr. Milian: But your Honor, the witness has already testified -- Chair Gort: Can you rephrase it? Mr. Milian: Yes, your Honor. Chair Gort: I know you guys do that very good. Mr. Milian: Yes, your Honor. In a position where you had risen to be one of the top executives of the City of Miami Police, reporting directly to the Chief and providing him crucial information on issues regarding the budget and overdrafts, if you will, of the budget, did you feel that in any way you were being hurt administratively or in personnel decisions by the Chief for your having transmitted that critical data of the overtime budget? Assistant Chief Brown: Yes. I thought that when I was stripped of all of my duties and responsibility that that was humiliating, demeaning, and he stripped me basically of my rank and all authority. Mr. Milian: Now, Chief you've nearly been in law enforcement now going on four decades. Do you have a good sense of issues inside the law enforcement department? For example, morale, esprit de corps, chain of command? Mr. Chavez: Objection. Irrelevant with regards to morale and -- Chair Gort: Okay. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: Yes. Go right ahead. Mr. Chavez: -- the only issues here are the insubordinance. Commissioner Suarez: We have admitted a plethora of irrelevant evidence today. So if we're going to be consistent, we've got to give counsel a little bit of latitude. Commissioner Spence -Jones: I agree. Mr. Chavez: Mr. Commissioner -- Mr. Milian: Now, as a man who has risen from the rookie ranks all the way to senior executive status in the department, do you have an opinion -- an expert opinion based on your training and background and experience, as to what the actions that were taken against you without cause did City of Miami Page 125 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 throughout the police department in the City ofMiami? Assistant Chief Brown: There were a lot of police department personnel expressed concern and regret that it happened, and there were a lot of confusion. Really, it didn't -- the e-mail didn't give any guidance or any direction as far as what would happen next or what -- not only my responsibilities but the other two commanders that were relieved of their responsibilities. Mr. Milian: Now, Chief as a law enforcement officer with nearly four decades of experience, you were obviously drawing a significant salary because of your background, your rank, your training. Would that be correct to say? Assistant Chief Brown: Yes. Mr. Milian: And we don't need to get into the specifics. I know it's public record. But for that money that you were being paid under ChiefExposito, once he cast you as an outcast on August 8, did you have anything to do for that money? Mr. Chavez: Mr. Commissioner -- Chair Gort: Excuse me. Strike that word from the record. Use another word. Mr. Milian: Okay. Mr. Chavez: Thank you, Mr. Commissioner. Chair Gort: You're welcome. Mr. Milian: I will strike that word. Once you were segregated into a nonoperational and administrative position -- Mr. Chavez: Mr. Commissioner, I again object strongly to the use -- Chair Gort: Okay, that one also. Mr. Chavez: -- of that word. Chair Gort: Not -- Mr. Milian: Another word? Chair Gort: Another word. Mr. Milian: Once you were put in a administrative limbo or Siberia, where you were not allowed to -- Mr. Chavez: Mr. Commissioner -- Chair Gort: Okay. Yes, sir. Mr. Chavez: -- I object and move to -- Chair Gort: We'll strike it. Strike it out of the record. Use another word. Commissioner Suarez: Strike Siberia, not limbo. I think limbo was okay. City ofMiami Page 126 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Yeah. Mr. Milian: All right, just Siberia? Chair Gort: Siberia. Mr. Milian: All right. Once -- Mr. Chavez: Mr. Commissioner, I would like to bring the demeanor and decorum of this proceeding back to what it was -- Chair Gort: Okay. Mr. Chavez: -- before the 2 o'clock break. Chair Gort: Well, my understanding is you had the opportunity to ask all the questions of the Manager and everyone, andl don't think at that time none of us knew how to object to some of the questioning. So I understand what we're trying to do is trying to get a fair trial to everyone -- not a trial, but a fair chance to everyone to do their work. Mr. Chavez: Understood. Chair Gort: Okay. Mr. Chavez: My objection is more of asking that the decorum and demeanor of -- Chair Gort: Okay. Mr. Chavez: -- the types of questions be brought back to the spirit of what we had -- Chair Gort: Okey-doke. Mr. Chavez: -- before the 1:45 break. Chair Gort: Yes, sir. Mr. Milian: IfI may proceed, your Honor. Chair Gort: Yes. Don't call me the Honor, please. Mr. Milian: Chairman. It's a sign of respect. Let me ask you this, Chief. Once you were placed in that status, for the money you were being paid by the people of the City ofMiami, were you able to exercise your previous functions as far as to your rank, your responsibilities, your decision -making, your operational responsibilities? Assistant Chief Brown: No. I did absolutely nothing. My only responsibility -- andl took that upon myself -- was to show up and report to my office, but there was no work coming to my office or any instructions or anything that I was directed to do. Mr. Milian: Did this status continue until the Chief was eventually suspended by the City Manager? Assistant Chief Brown: Yes. Mr. Milian: And subsequent to the suspension of Chief Exposito, were you reintegrated back City ofMiami Page 127 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 into a position commensurate with your duties, responsibilities, rank, training, experience, and background? Assistant Chief Brown: Yes. Mr. Milian: And is that where you remain to this day? Assistant Chief Brown: Yes. Mr. Milian: Have you ever received a formal ruling of cause from ChiefExposito as to why those actions were taken against you? Mr. Chavez: Mr. Commissioner, asked and answered. Repetitious and cumulative. Chair Gort: Okay. You tell me. I'm not an attorney. Commissioner Suarez: I think it's a fair question. Assistant Chief Brown: No. The only communications that received was the initial e-mail on August 8, which took away all of my duties and responsibilities. Mr. Milian: Now in your years in law enforcement, when a law enforcement member, a certified law enforcement member of the agency is subject to any disciplinary action, up to and including termination, is it customary past practice, procedure and policies of the City ofMiami to put that member on notice and let that member know why he is being discipline, demoted, or ostracized? Assistant Chief Brown: Yes, it's customary. And like any other employee or citizen of the United States, I'm still entitled to some form of due process. Mr. Milian: Now as a result of that action that was taken against you, have you initiated, without getting into any attorney -client privileged communication, any actions as a result of the actions that ChiefExposito took against you? Assistant Chief Brown: Yes, I have. Mr. Milian: Okay. And would you describe the work environment that you suffered under Chief Exposito after August 8? Assistant Chief Brown: It's difficult to describe because there was no communication. I basically had a corner of the police station that reported to, andl stayed in my office. Mr. Milian: Now over the years you've been in law enforcement, have you mentored other members of the police department? Assistant Chief Brown: Yes. Mr. Milian: Have you mentored other minority police officers who are coming up through the ranks? Assistant Chief Brown: Yes. Mr. Milian: And have you ever during that time seen an officer or encouraged an officer to disobey a direct or an indirect order from a superior? Assistant Chief Brown: Have I ever seen --? City ofMiami Page 128 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Have you ever seen it tolerated -- I should be more explicit -- that a subordinate would disregard a direct or indirect order from a superior? Assistant Chief Brown: No. I -- as a matter of fact, I have a reputation of being sort of a disciplinarian. Mr. Milian: As a member with four -- nearly four decades of experience in law enforcement, is it critical to the mission of law enforcement as a paramilitary organization for orders to be obeyed? Assistant Chief Brown: Yes, extremely critical. Mr. Milian: And in the time that you've been in law enforcement, you have seen different actions taken by different leaders. Was the action taken against you an action that was conducive to the proper order and discipline of the Miami -- City ofMiami Police Department? Assistant Chief Brown: No. I've -- in all of my years and experience, this is the first that I've ever had -- seen a -- not only a high-ranking officer but anyone that was stripped of his or her authority and not given any responsibility or any duties or anything. Mr. Milian: Now this is something you had mentioned earlier to the Commissioners. You talked about giving the Chief critical information about projections, about the exhaustion of the overtime budget. Were you the messenger who delivered that information to the Chief? Assistant Chief Brown: Yes. Mr. Milian: And as the messenger, do you feel that delivering that information made you a target for retaliation? Assistant Chief Brown: Yes. I could think of nothing else because there was never any indication -- the Chief never counseled me or I was never written a reprimand or a counseling for any wrongdoing or misbehavior or whatever, so that's the only thing that I could think of. Mr. Milian: And now under the current administration, have you been reintegrated into your prior rank and position as you understood it to be before you were demoted on August 8? Assistant Chief Brown: Yes. Mr. Milian: Chief I want to thank you for your service, andl want to thank you for your testimony before the panel. I tender the witness for cross-examination. Chair Gort: Yeah. Mr. Chavez: Good evening, Chief. Assistant Chief Brown: How you doing, sir? Mr. Chavez: Can you please share with the panel what position you held before -- and let's just use the date August 7, 2011? What was your rank? Assistant Chief Brown: Assistant chief of the administrative division. Mr. Chavez: That was your unclassified rank, correct? City ofMiami Page 129 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Brown: Yes. Mr. Chavez: What was your classified rank? In other words, if you got rolled back, what would you get rolled back to? Assistant Chief Brown: Police captain. Mr. Chavez: Okay. Are those the same ranks, both classed and unclassified, you hold today? Assistant Chief Brown: Yes. Mr. Chavez: Did your salary change or your benefits change since then? Assistant Chief Brown: No. Mr. Chavez: Now with regards to the budget, you were in charge of discussing budgetary issues, right? Assistant Chief Brown: Yes. Mr. Chavez: That's what Chief Exposito put you in charge of back when you were promoted, correct? Assistant Chief Brown: Yes. That's one of the functions under my command. Mr. Chavez: Was there a time where you believed that the department overall budget was going to be under --I'm sorry, over budget by $2.5 million? Assistant Chief Brown: Yes. I -- that time was in late July when I was informed by Ms. Shepherd, our budget director, that the budget unit from -- the City of Miami's budget unit was going to take $2 million from our budget. So prior to then, my projection that I had gotten from Ms. Shepherd earlier was $681, 000. So if you add 2 million to that $681, 000, then that would be a little more than $2.5 million. Mr. Chavez: Do you know if that number took into consideration the savings associated with departmental attrition? Assistant Chief Brown: I don't know. Mr. Chavez: Wouldn't that -- if -- assuming that that $2.6 million number you indicated did not take into consideration the savings associated with departmental attrition, what would that do if we were to include attrition numbers or savings into the overall budget deficit you reported of $2.6 million? Assistant Chief Brown: Okay, the $2.6 million -- and this was a projection -- but the attrition dollars were what the Chief used on the overtime -- Mr. Chavez: Okay. Assistant Chief Brown: -- because the overtime budget originally) think was one point something million and attrition, the salary savings was where the additional dollars were being spent. Mr. Chavez: What was the fiscal year 2011 overtime budget? City of Miami Page 130 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Brown: I don't have the -- I don't have that report with me but -- Mr. Chavez: But you were involved in the budget and that was your job -- Assistant Chief Brown: Yes. Mr. Chavez: -- as of August 5, correct? Assistant Chief Brown: Yes. Mr. Chavez: So would it surprise you that actually with -- the actual number that was budgeted was $2.5 million as opposed to the 1.5 you indicated now? Assistant Chief Brown: Okay. No. I could be off. Mr. Milian: (UNINTET,TIGIBT,F). Excuse me, Chief. If the witness is -- Ms. Thompson: I'm sorry, Chair. We cannot -- Chair Gort: You need to go to the mike. Ms. Thompson: -- record off the mike. Mr. Milian: Oh, I apologize. My objection is that if the witness is going to be questioned about any documents, that he be given the courtesy of being shown the document before he's asked to answer questions from a document not in evidence. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes. Vice Chair Carollo: Yeah, but he's not asking questions about a document. He's asking question about a budget. I could tell you -- I know the -- I don't have the document before me, and I know that it was budgeted at 2.5 million. Mr. Milian: Well, I -- Vice Chair Carollo: And I don't have the document in front of me. Mr. Milian: Commissioner, I have no problem with you being able to answer the questions. The issue is that when a witness is being asked about a document not in evidence and is being specifically asked on cross-examination, he is entitled to see the document before he is being either impeached or attacked on his credibility. Vice Chair Carollo: Right, but he's not being -- Commissioner Sarnoff. It depends -- Vice Chair Carollo: -- asked on a document. He's being asked on a subject matter. Commissioner Sarnoff. Right. Vice Chair Carollo: The subject matter being the budget, what was budgeted for overtime. Mr. Milian: I appreciate, again, Commissioner. City of Miami Page 131 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: It's not a document. Mr. Milian: But I think that if the gentleman is holding up a document that the Chief is entitled to see it. Commissioner Sarnoff.. I think he's entitled to ask the question. He's also entitled to say I have no memory. He's entitled to then say do you have a collapse of memory. Then he comes up to him and says, would the budget actually refresh your recollection? He says it would. You approach the witness. You show it to him. Does that refresh your recollection? He says, yes, it does. Thank you. Mr. Milian: I have no qualms, but he specifically said would it surprise you, and that's the question that I have an objection to. Commissioner Sarnoff.. I think he said would it surprise you if budgetarily. I don't think he said anything about a document. Commissioner Spence -Jones: Mr. Chairman. Chair Gort: Yes. Commissioner Spence -Jones: Is there a problem with him seeing the document? Mr. Chavez: Ultimately, this is a chart that I prepared myself for the purposes of -- Commissioner Sarnoff.. Right. Mr. Chavez: -- crib numbers -- Commissioner Spence -Jones: Okay. Mr. Chavez: -- based on the budgetary numbers that Al Vega had with him. Commissioner Spence -Jones: All right. So some people may be -- like our numbers man down there, he may know numbers right off like that. I won't. So the issue is I wouldn't want you to just take him off by surprise. So if you have something that you can share with him, it would -- I think it would be the fair thing to do. Mr. Chavez: Candidly, I will. I'm just going to ask subject matter generally and then I will go ahead and qualin, the document -- Commissioner Spence -Jones: Okay. Mr. Chavez: -- by appropriate means. Now as it relates to attrition, that is money that the department no longer essentially has to pay because they no longer are responsible for that individual officer's salary, benefits, and the like. Is that true? Assistant Chief Brown: That's correct. Mr. Chavez: Okay. So the attrition numbers, whether you apply them to a specific portion of the budget, whether it be overtime or the general budget, if we take the departmental savings associated with attrition as of July, what does that do to the $2.5 million number that you indicated? Does it make it go up above 2.5 or below 2.5? City of Miami Page 132 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Brown: Okay. I don't have those reports in front of me, and I don't feel comfortable in asking [sic] budgetary questions without the reports. Mr. Chavez: May I approach? Mr. Commissioner, ifI may, I want to put it on screen, only because the computer's here, if that's okay with you, andl don't mean to crowd your space. I'll let you use that mike. Now -- Mr. Milian: Mr. Chairman, could we have identified for the record what the projections are and what is the source, if there's a foundation for them? Mr. Chavez: IfI may echo the previous indication, we've been loose, andl will lay the qualification through Al Vega. Mr. Milian: Well, but the document has not been admitted into evidence before this Board and it's now being published before the public record and without a foundation, without authentication, without any corroboration of the numbers. And the witness has indicated unless he had the actual numbers before him, he did not feel comfortable answering these questions. Commissioner Sarnoff. Well, I think what he can do is he can say that he'll firm up the numbers with Vega. He can demonstrate the accuracy/inaccuracy of it. He could say it refreshes his recollection, means nothing to me, in which case that'd be interesting. Andl think what you're going to see what he knows about the budgetary process. Mr. Chavez: And ultimately -- now do you identify a number of 5.2 million as fiscal year salary fringe benefits? You see that? Assistant Chief Brown: Yes. Mr. Chavez: Okay. Now associated with operating savings, putting aside the number, what is your understanding as to what operating savings mean under the budget? Assistant Chief Brown: Well, operating savings can come from several different categories, salary savings, equipment, maintenance. Different parts of the Department. Mr. Chavez: Okay. Do you see the indication there where it says reimbursement received under revenue account? Assistant Chief Brown: Yes. Mr. Chavez: With a figure of $590, 000. What is your understanding of such entries in the general budget for the Police Department? Assistant Chief Brown: That's grants that are reimbursable or any event or something that we 're reimbursed for. Mr. Chavez: Okay. Like, for example, reimbursable income -- I'm sorry -- overtime? Assistant Chief Brown: Yes. Mr. Chavez: So, essentially, what we do is when working with the overall budget, we take all the individual entries, and you have now a $5.2 million savings in fringe benefits. Would that be associated with attrition normally? Assistant Chief Brown: I can't answer that question right now because I'm not looking at the reports that we generate. Although I see your numbers here, and I'm not familiar with your City of Miami Page 133 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 reports, and I don't want to stipulate that your numbers are accurate. Mr. Chavez: What would, you know, salary fringe benefits normally mean? Savings associated with not having to pay certain benefits and salaries? Assistant Chief Brown: Pension contributions or -- Mr. Chavez: So it would be like an attrition number? Assistant Chief Brown: Yeah. Mr. Chavez: Okay. And as far as pending overtime adjustments, would that also be reimburse -- well, what would -- typically as categorized as pending projected overtime adjustments? Assistant Chief Brown: Reimbursable overtime or anything that we're going to collect to put back into the budget that we spent. Mr. Chavez: When you reported the 2.5 or $2.6 million error to -- or what was going to be a 2.5 or $2.6 million over budget number, did you take into consideration things like attrition, reimbursable received revenue, and pending projected overtime adjustments at that time? Assistant Chief Brown: No, I did not. And want to clarify that never reported the $2.5 million deficit. The only number that reported to the chief was $681,000. But I made him aware that Ms. Shepherd, our budget director, had informed me that $2 million will be taken out of our budget. Mr. Chavez: Okay. Commissioner Sarnoff. Can I ask you a question? Mr. Chavez: Feel free. Commissioner Sarnoff. Before it gets away from me. Who was taking the $2 million and for what reason? Assistant Chief Brown: Budget unit from MRC (Miami Riverside Center). I don't know if it was actually -- Commissioner Sarnoff. What, the City just said we're going to cut your budget $2 million? Assistant Chief Brown: No. It was done the previous two years also. On salary savings, usually, the City -- if there's a budget deficit, they take it out of our budget, salary savings. Commissioner Sarnoff. So in a mid year adjustment, so to speak, the City was taking $2 million? Assistant Chief Brown: I don't know the exact figure, but it isn't uncommon. It occurred in 2010. And if I'm not mistaken, it occurred -- some funds were taken out in 2009. But these are questions that -- I think that -- I'm not really -- Commissioner Suarez: Can I ask a question? Chair Gort: Just a minute, chief. Commissioner Suarez: Thank you. I'm a little confused. We are dealing with Count II, correct, City of Miami Page 134 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 because we're talking about budgetary issues? We're not dealing with Count I. I just want to clam that, because I'm a little confused as to what exactly we're dealing with. Commissioner Sarnoff. And to some degree, I am too, but I'm trying to understand. I heard something that I've never heard before, and we took $2 million from them. Well, who took the 2 million, and for what reason? Assistant Chief Brown: I think Mirtha is here. She may be able to answer that question. Commissioner Sarnoff. Okay. All you know is that whatever -- Assistant Chief Brown: I was informed -- Commissioner Sarnoff. -- your general operating budget -- Commissioner Suarez: There's only -- there's really only one body that can do it. Commissioner Sarnoff. Probably right. As far as you know, from your general operating budget of -- I forgot. You guys are in the 120 category? Assistant Chief Brown: One twenty-four. Chair Gort: One twenty-four. Commissioner Sarnoff. Okay. So the $124 million, now all of a sudden the City says to you, now you have a $122 million. Assistant Chief Brown: Yes. Commissioner Sarnoff. Okay. Assistant Chief Brown: Now, Commissioner, I don't know if that money was actually taken out. I'm testifying that I was told that -- Commissioner Sarnoff. Right. Assistant Chief Brown: -- it could possibly be taken out of the budget. Commissioner Sarnoff. You know what; it's always fun to see how this Administration works. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes. Vice Chair Carollo: Could we have our budget director -- Chair Gort: Right. That's what I was going to ask. Vice Chair Carollo: -- or ex -budget director --? I'm not sure who -- I'm not really sure who is or isn't the budget director anymore, but I was working with Mirtha and all of a sudden, it's someone else, and there were some discrepancies and -- to a point that I asked the Manager who do I ask budget questions to. So at least it appears like at this time it was Ms. Dziedzic. So if she could come up. Daniel Alfonso: Commissioner, Daniel Alfonso, budget director, City ofMiami. IfI may answer City ofMiami Page 135 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 the question, I believe the confusion is the Police Department budget is $124.3 million approximately. There was a proposal that came to the Commission to amend the budgets of various departments, the Police Department being one of them. And in that proposal it included removing approximately $2 million from the Police Department budget, and it was related to attrition for officers that had been loaded into that budget originally in excess of their authorized count. The amendment never happened; therefore, the budget has not changed. Hence, the Police Department still has $124.3 million in budget. Commissioner Sarnoff.. So we are now talking about a 681,000 overtime? Assistant Police Chief Brown: That was a projection approximately a month and a half ago. Mr. Chavez: Now -- Commissioner Sarnoff.. I mean, I -- let me just say something, 'cause I don't know if you guys sit here -- maybe I've sat here longer than some. You -- I mean, it's police. It's the most important function we perform, bar none. And you budget a certain number of people. You know they're having difficulty hiring for reasons that don't think the private sector could even withstand, including the fact that some obstacle course didn't have a high enough obstacle, and that's an obstacle in and of itself to the City ofMiami 'cause we can't hire 17 police officers. And you don't even know whether, budgetarily, it's better practice -- as the chief says, it's more expensive to have cops; yet, we know we have grants for cops, so some of the cops we're not going to pay for. And then we have overtime, and what do we expect? If we don't hire cops, you're going to ask more of the cops that are there. I mean, I wonder if our chief or budget director's reacting to demands that they can't satisfy. And I wonder if this is just nothing more than -- I don't know -- an Administration that's riding them too hard. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: Thank you. And I'd like to expand on that. You know, I actually was surprised when all this about overtime came about, because let's be honest; the Administration hasn't necessarily been great with their estimates. And as a matter offact, you're right; we didn't do the mid -year adjustment. You know why? Because I couldn't get my answers. And because I couldn't get my answers, we always spoke about deferring. As a matter offact, it got to the point that told the City Manager, you know, it's getting to a point that the heck with it; we should just do the closing adjustment. However, it's wrong. It's wrong. But I will not approve any adjustments until get the information that I need, until am sure of what I am doing. Therefore, I'm going to choose the better of two evils. Andl said, you know what; let's defer it, let's defer it. So that is really why it was deferred. And we still haven't approved any adjustments for the current year's budget. So realistically, when I saw this about the overtime -- and when you look at the total of salary -- let me ask you something. Mr. Manager, is there any other -- or is there any department that is over their budget in the City ofMiami currently? See, this is what don't understand. You're looking somewhere else. I mean, do you know this or not? Mr. Martinez: (UNINTET,TIGIBT,F) I can't confer with the budget director (UNINTELLIGIBLE) every single department. Is that what you're telling me? Vice Chair Carollo: No. I just -- do you know if any department that's over their budgets? Any other department. You don't know of any other department that's over their budget currently? Mr. Martinez: No. But the issue here is -- Ms. Thompson: Excuse me, Chair. The mike is not on. City ofMiami Page 136 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: GSA (General Services Administration) is over on fuel. Vice Chair Carollo: GSA. There's other departments that are over by the way. But yes, you're right, GSA. I'm glad that they're getting you up to speed. And have you demanded or requested or asked that they be within budget? Mr. Martinez: GSA is over on fuel because that's a demand placed on them by their customers. Mr. Milian: Commissioner, with all due respect, ifI may. I appreciate your questions. They're very good questions, maybe at a budget meeting. But the reason this witness was put on was the subject of the two counts that are in the suspension and dismissal of the chief, one having to do with what was done to this gentleman regardless of his rank, experience, and years in law enforcement; and second, the fact that he was delivering critical information that you probably always want to have delivered on a timely basis. The problem of this testimony, to answer Commissioner Sarnoffs query, is precisely so that you would understand the context of the actions that were taken against this gentleman and other commanders. It's a smoking gun. It's circumstantial. But it's part and parcel of why the Manager had to take the actions that he did. And before you get into a budget discussion, I would suggest we deal with specifically with what Chief Brown did and what was done to him by the gentleman who is the subject of the termination proceedings here. Mr. Chavez: Mr. Commissioner. Chair Gort: Okay. Thank you. Vice Chair Carollo: Mr. Chairman. Mr. Chavez: Mr. Chair. Chair Gort: Yes. Vice Chair Carollo: IfI may? Chair Gort: Go ahead. Vice Chair Carollo: As I have stated in the past andl will again, I'm not an attorney. You know, I'll go into laymen's term. But I do have the memorandum of the City Manager for a suspension, and the second part clearly stipulates You have continued to disregard my request about reducing overtime expenses by organizational restructuring and adjustments to deployment of resources consistent with the policy directives I have communicated to you. "I think the line of questioning is with regards to the overtime and what was stated or not. So -- I mean, if he has requested this of let's just say, the Police Department, you know, again, I think there's been issues with regards to what's done with one department and not with another. So I'm just wanting to see -- because the truth of the matter is, the Police Department, as a whole, will not be -- let me say that again. The Police Department, as a whole, will not be over budget. They will actually have a surplus. Yet, there's other departments that will be over budget, and l just want to see if he has asked of them the same things. Mr. Milian: I understand, Commissioner. Chair Gort: Excuse me. Mr. Milian: It's a valid question. My point being is that the reason -- City of Miami Page 137 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Mr. Milian. Mr. Milian: -- that this witness was presented -- Chair Gort: Mr. Milian. Mr. Milian: -- was because -- Chair Gort: Mr. Milian. Mr. Milian: -- of the retaliation. Yes, sir. Chair Gort: Please. We're not in court. We're doing different procedures here. Commissioner's making a statement. He doesn't want an answer right now. He's addressing something else. Vice Chair Carollo: You know, the bottom line is, I just -- you know, as I stated before, it just seems like, you know, with the overtime -- and we could get as much into the overtime as you want because -- as a matter offact, last year, when we were sitting here, except for Commissioner Spence -Jones, and I'm glad that she's back, we did do that mid -year adjustment and so forth. And as a matter offact, we did a lot more than that. And you know why? Because in 2009 -- let me give you the -- in 2009 the overtime actuals, not what was budgeted, actuals was $7.8 million. So the budgeted amount for 2010 was $7.5 million. That's what it was budgeted. Let me say that again. For 2009 the actual amount of overtime in the Police Department was approximately 7.8. For 2010 what was budgeted, based on the actuals of 2009, was 7.5 million. The actuals came in about 2.6. And the difference was allocated to other departments. Now that year it was done, at least to a certain degree, correct with a mid year adjustment. And then what occurred for 2011 is we held them at 2,005. I'm sorry; 2.5 million. Why am I saying all this? 'Cause I'm a little surprised that this with overtime is really being used. I really am. Because, listen, the Administration hasn't been exactly 100 percent correct on estimates. Two and a half months ago -- get the TV (Television) news clip that you've mentioned and so forth. Get the paper articles, the radio tapings. I clearly heard "The City ofMiami has no deficit." "We are in a stable financial state." And yet, just recently this week we found out that the budget deficit actually increased. And now I'm seeing that out of total salaries, wages, let's say of I don't know, 100 million, more or less, you know -- the difference of three million. You know, that's about 3 percent. And you're targeting that as not listening to an order, a direct order, or so forth. I'm finding difficulties with this, especially when, as Commissioner Sarnoff said, there's less officers, overtime is going to go up. It has to. So it's how much of this is out of their control. Now I don't have a problem with anybody saying overtime has gone up. I don't have a problem with that. I expect that. Shoot, that's why we actually here on this dais have requested that on a monthly basis, we be informed. As a matter offact, I think we were getting that in the past, and somehow we've gotten away from that. Chair Gort: Let me clam my point of view on this no deficit. My understanding, when we were working on the budget last year, we knew we were going to have $105 million deficit; that we all worked on it, and we were able to balance the budget. But at the same time, we always said -- at least that was my interpretation -- that we were going to have problem, and we were going to have deficit the following two years. My understanding is, when it was mentioned, and that was my understanding also, that there was no deficit, it was in the budget '10/'11. Because if you recall, deficit projected for the '10/'11 budget was going to be about 10 to $15 million. My understanding is, certain meetings that they had with the different departments and some savings they were able to put together where they keep telling us that they're not going to have -- we're not going to have a deficit. Andl hope that's the case when it comes to September 30 in the budget '10/'11. Commissioner Suarez: Mr. Chairman. City ofMiami Page 138 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: We didn't know exactly what the deficit was going to be in -- Commissioner Suarez: Mr. Chair. Chair Gort: -- '11/'12 budget, and that -- you're correct on that. Vice Chair Carollo: Mr. Chairman, so let's get more into the exact issue. For 2010, has every line item come in exactly? Chair Gort: No. Vice Chair Carollo: No, right? Chair Gort: Yeah. Vice Chair Carollo: Why does it seem like we are going to have a balanced budget for 2010 or come in --? You know why? Because we are netting some of the line items with others. Chair Gort: In some other reserves that we had. Vice Chair Carollo: Right. Chair Gort: Right. Vice Chair Carollo: That's actually what the Police Department is doing. And when they do all that, realistically they come up with a surplus of a hundred and something thousand dollars. So targeting so specific just the overtime, you know, I'm having difficulties with. Commissioner Suarez: Mr. Chairman, ifI may? Mr. Chavez: Mr. Commissioner. Chair Gort: Yes. Commissioner Suarez: I can very much understand the Vice Chairman's frustration, andl shared in a lot of different instances andl have from here. I think the issue, as far as I see it, is less about whether they're going to go over their budget or whether they're exceeding their overtime. I think the issue very, very strictly is the Manager made a directive. I think counsel has agreed that a directive was issued. I think the testimony states that a directive was issued. Andl think the only question here was whether or not the directive was followed in Count II in terms of whether or not a plan was created, which is what believe the directive was pursuant to the e-mail (electronic) from the Manager to the chief dated, I believe July 19, at 6: 41 p.m. It said, 1"m requesting that you prepare immediate plan of action to drastically reduce the overtime costs. "Now we can disagree on whether they should reduce overtime costs, on whether it makes sense, on whether it's fair, given the fact that there's a lot of attrition, on whether it's good policy. And I think that is a legitimate question for us to ask and for us to hold the Manager accountable to, and we should and we will, I'm sure. Mr. Chavez: Mr. -- Sorry. Commissioner Suarez: But I think the question before us here today is different. I think the question before us here today is whether that order that was given was complied with, andl wish we could just stick to the issue, 'cause we would have been out of here about six hours ago if we would have been doing that. City of Miami Page 139 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Mr. Chairman. Chair Gort: Yes. Mr. Chavez: The only reason why this area of examination is being undertaken in direct response to the objection levied is because the inference to be drawn from the testimony taken was that this gentleman was somehow retaliatory demoted. My point is suggesting an alternative theory by exploring the budgetary issues of which this gentleman is in charge of; that the information being passed on to the chief was inaccurate and not full in taking into consideration other factors, like attrition, salary, benefits, savings, and the like. In other words, I am arguing an alternative reason for requesting the demotion, which is directly on point, as Commissioner Carollo pointed out, as well as Commissioner Suarez, the second point of the insubordination. Andl believe I'm entitled to establish an alternative theory for the action at issue for which my client is being charged with insubordination. Mr. Martinez: May -- Commissioner Gort, may I make a comment? Chair Gort: Yes. Mr. Martinez: Another motivation for me to ask to assess the overtime is operational issues. I had heard that some officers were working 15-hour shifts, getting exhausted. I figured if they could rebalance a little bit, we wouldn't be exhausting our officers on 15-hour shifts. That was another motivation, not just the money, but the physical exhaustion of the policemen. Commissioner Sarnoff.. But why aren't we hiring? I mean, I'm sitting here in just amazement. If I was a spectator of the City ofMiami, I'd be saying, What the hell are you people doing here? "I mean, what the hell are you people doing here? Applause. Chair Gort: Hold it. Commissioner Sarnoff.. Why aren't you hiring? Mr. Martinez: You know, I approved the hires the minute they gave it to me. Commissioner Sarnoff.. Look, I got news for you. I saw a document here; it was approved over a year ago. Why didn't you hire? I know it's parenthetic to you. You weren't there. Mr. Martinez: I've been on the job two and a half months. As soon as -- Commissioner Sarnoff.. But that's the point. Mr. Martinez: Commissioner, as soon as -- Commissioner Sarnoff.. My point is why are you not --? Mr. Martinez: -- they brought it to me -- Commissioner Sarnoff.. Take a lateral hire. Mr. Martinez: -- I signed it on the spot. As soon as they brought it to me, I signed it on the spot. Go hire. City ofMiami Page 140 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. Well, I'm still lost. I mean, if I'm a citizen, I'm out there thinking to myself do these guys care? Do they care? I mean, you're -- I remember having a conversation with this chief. I think we were 30 -- 27 or 31 officers down. Can I help you? No, Commissioner. I have it handled. "It was -- 'cause Migoya was around at that time. And he said, 1'got it handled. "You know, I felt like maybe I could do something. No, no, no, no. It's all okay. Then we had Tony Crapp. You still okay, chief? Yeah, I think we're out to get it done. "You know, and I'm sitting here, and I'm listening. And think every citizen wants to hear you're up -to -staff as a police force so that -- you know, so you could do an ounce of prevention is worth a pound to cure, so that you could do a three-legged stool. This man wanted to do problem -solving teams, and as opposed to making people disperse 'cause they see too many cops and come back as soon as the cop leaves, so his PST (Problem Solving Team) team theoretically goes in there, arrest the guy, puts him away, andl don't know what his third leg of the stool was, but that was the two legs of the stool. But I'm sitting here and we're haggling over -- he's 54 officers down on July 20, 2011. Fifty-four officers down, 5 percent of the number of officers he needs in his department, and we're still figuring out is the training obstacle course high enough. I mean, come on. Do we have our heads, you know, where they're supposed to be? Are our heads really up our you-know-whats? I mean, I can't believe this. I can't believe we got to this. I can't believe we're here where we are. And the answer to the question is you're 54 cops down. Hire them. And then somebody says there's a DOJ (Department of Justice) order, andl love that saying in the City of Miami. "Commissioner, do you know we're under a DOJ order? "Can I see it? Nope. "You sure it's a DOJ order? Yep. "What's it say? "Oh, you don't need to see it, Commissioner." I know what Department of Justice means. I can theorize that somehow in 1970 or 1980 the City of Miami was hiring too many Anglos, too many blacks, too many Cubans. Call it what you want. And DOJ got involved, theoretically. But I've never seen the damn order. And now any time we do anything, `Do you know there's a DOJ order?'Okay, so there's a DOJ order. So hire the requisite number of people you need to hire. I mean, you have a 14 percent unemployment rate, and we're not hiring cops. Go to Detroit. They're firing cops left and right up there. They're all trained. Give them a two -week training course; they're down here. But this is where we are. This is a shame. Mr. Chavez: Mr. Chairman. Chair Gort: Okay. Yes. Mr. Chavez: IfI may proceed? Oh, forgive me. Commissioner Suarez: Just going to tell Commissioner Sarnoff to save some energy for next Thursday, 'cause that's what we're going to be talking about. Chair Gort: Can you speak up? Commissioner Suarez: To save some energy for next Thursday when we discuss the budget. That's what we're going to be talking about. Chair Gort: Get that for the 15th. Do you have further question for this witness? Mr. Chavez: Just a few. Chair Gort: Okay. Mr. Chavez: Chief Brown, do staff members, such as yourself, serve at the will of the chief of the Department? Assistant Police Chief Brown: Yes. City of Miami Page 141 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: So isn't it true that customarily rollbacks, such as the one proposed in your case, does not come with notice; usually find out after the fact? Assistant Police Chief Brown: No. Usually you're informed of it. And normally, there's a reason why, a valid reason for a rollback. Mr. Chavez: Okay. But do you know if that is in fact required in the -- I think you're a 30-year veteran with the Department? Assistant Police Chief Brown: Yes. Mr. Chavez: Or as counsel put it, four decades. Is that true? Assistant Police Chief Brown: Yes. Mr. Chavez: Do you know if in every case in four decades, every rollback came with a heads up and a reason attached; for example, any of the 20 that took place around the time Chief Exposito first came in? Assistant Police Chief Brown: Prior to Chief Exposito, it did. Mr. Chavez: So Chief Timoney gave a heads up and a reason for rollbacks? Assistant Police Chief Brown: Yes. Mr. Chavez: And before that, who was chief? Assistant Police Chief Brown: Chief Fernandez. Mr. Chavez: And how many rollbacks did Chief Fernandez do, to the best of your knowledge? Assistant Police Chief Brown: Correction. I think it's Chief Martinez. I'm sorry. Vice Chair Carollo: Yeah. It wasn't Fernandez. Mr. Chavez: Okay. So how many rollbacks did Chief Martinez do, to the best of your knowledge, if you recall? Assistant Police Chief Brown: I don't recall any. Mr. Chavez: Okay. And how about Timoney? Assistant Police Chief Brown: I believe two. Mr. Chavez: Okay. And those, to the best of your knowledge, came with a anticipatory notice and an explanation subsequent? Assistant Police Chief Brown: Yes. Mr. Chavez: I have no further questions. I tender the witness to the panel. Commissioner Suarez: I have one question. Mr. Chavez: Feel free, sir. Chair Gort: Thank you. City of Miami Page 142 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: I have one question. How many rollbacks has Chief Exposito done in, what, a year and, what, six months? A year and six months. Assistant Police Chief Brown: Yeah. I think the number would -- is probably close to about 15. Commissioner Suarez: And how long was Chief Timoney the chief of Police? Assistant Police Chief Brown: Approximately seven years. Commissioner Suarez: And in seven years he rolled back how many people? Assistant Police Chief Brown: I believe two. Commissioner Suarez: And you said that the chief has been -- can you confirm that the chief has been chief for, what, a year and a half, approximately -- two years actually? Assistant Police Chief Brown: Close to two years. Commissioner Suarez: Close to two. And how many has he rolled back in that time frame? Assistant Police Chief Brown: I think the number is close to 15. I don't want to be quoted exact, but it's close to 15. Commissioner Suarez: Thank you. Commissioner Sarnoff.. I have a question. Of the $681, 000 overtime, how much of that is constituted from the Three Kings Parade, Martin Luther King Parade, and the Jose Marti Parade? Assistant Police Chief Brown: The -- those three events -- the Police Department's budget was reimbursed for those three events. Commissioner Sarnoff.. Oh, it was? Assistant Police Chief Brown: Yes. Vice Chair Carollo: Mr. Chairman. Chair Gort: Okay. Vice Chair Carollo: There was another parade down Southwest 8th Street, andl need to refresh my memory with the e-mails, andl remember because I did send e-mails 'cause I was concerned. One, obviously, the budget; and two, because of public safety, if it occurred, which it did, and we didn't have the right police officers there, whether we were paid or not. I want to make sure there was public safety involved, you know. Usually, you know, I have all my materials in front. I will need to see the e-mails and so forth, so I won't ver 'cause I think there was another event. Assistant Police Chief Brown: Yeah. The other event, that's the parade that Gloria Estefan was involved in. Vice Chair Carollo: And there was another one after that. Assistant Police Chief Brown: I'm not aware. City of Miami Page 143 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: There was actually, yeah, two. There was that one, then there was another one after that. Andl know because it went up to 4th Avenue and Southwest 8th Street, and some of the businesses actually complained -- Assistant Police Chief Brown: Okay, I'm not aware of that. Vice Chair Carollo: -- because of the street closure. Commissioner Suarez: Mr. Chairman, ifI may? Chair Gort: Yes, sir. Commissioner Suarez: I just have a couple follow-up questions on the line of questioning that I was on before. How long was Chief Martinez a chief of the City ofMiami Police Department approximately? Assistant Police Chief Brown: Wow. I think about two and a half years. Commissioner Sarnoff. Three years. Commissioner Suarez: So in -- essentially, ten years and a decade only two people were demoted in a decade or were rolled back as counsel described it? Assistant Police Chief Brown: Yes. Two, maybe three, but it wasn't a high number. Commissioner Suarez: And you said that in two years, Chief Timoney [sic] has rolled back 15, approximately? Assistant Police Chief Brown: Not Chief Timoney. Commissioner Suarez: I'm sorry. Chief Exposito has rolled back approximately 15. Assistant Police Chief Brown: Yes. Commissioner Suarez: Of those 15, can you tell me approximately how many of those did he actually promote and then subsequently demote? Assistant Police Chief Brown: Well, initially, I think 11 or 12 people when the chief took over, he demoted, and 3 -- roughly 3 that were promoted -- 2 or 3. I'm not sure. I don't remember the exact number. Commissioner Suarez: So he promoted three, and then he demoted those three that he promoted? Assistant Police Chief Brown: Yes. Commissioner Suarez: So roughly the same amount that were demoted in the entire prior ten years? Assistant Police Chief Brown: Yes. Chair Gort: Okay. Any further questions of this witness? Commissioner Spence -Jones: Yes. City ofMiami Page 144 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Yes, ma'am. Commissioner Spence -Jones: Okay. So I have a few questions that I do have. Let me just say, I'm probably not going to talk that much about the budget, because I understand from the Manager the issue wasn't really about the budget; it was really about the plan. Mr. Martinez: (UNINTET,T IGIBT ,F) Commissioner Spence -Jones: Yeah, right. So I don't want to get into the issue of you know, the money because, clearly, you were -- I think you were clear earlier about that wasn't really the issue. One thing that I can say -- and maybe I'll just -- for me, I'll just come from a whole different perspective. but you know, I really take value in people. And to me, people are our greatest resources. And you know, as a leader, we have a responsibility to, no matter what, treat people right. Whether or not we dis-- we agree with how, you know, they're handling things or whether or not we agree with -- maybe we just don't have the same philosophy anymore, or we just feel like we need to move on, we still just have to handle people right. So I'm a little alarmed with, you know, kind of what I'm hearing. But I do want to kind of drill down on it a little bit, because when we use words like retaliation, that's very alarming to me. Retaliation. So I have a few questions on that, because you know, Roy -- or I guess the attorney made the comment -- 'cause I'm -- this is kind of the first time I'm hearing that someone felt retaliated against. So I want to ask you a few questions real fast, Roy. So when did you -- how did you get the job with the chief? Like -- Assistant Police Chief Brown: When -- Commissioner Spence -Jones: When did you start with the chief? That's the question. Assistant Police Chief Brown: When he took over as chief of Police. Commissioner Spence -Jones: When he took over. So you went in then, 'cause I wasn't here. You went in when he went in? Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: Okay. So when you went in -- what, did you know the chief prior to this? Assistant Police Chief Brown: Yeah. We've known each other for 25, 30 years or so. Commissioner Spence -Jones: Okay. So for the most part, you guys had a good relationship going in? Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: Okay. So when you first came on board and you was the assistant chief deputy chief or what? Assistant Police Chief Brown: Assistant chief. Commissioner Spence -Jones: 'Cause I'm sorry. I just don't know. Assistant chief. Assistant Police Chief Brown: Assistant chief. Commissioner Spence -Jones: Okay. So as the assistant chief what was your main role when City of Miami Page 145 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 you first came on board? Assistant Police Chief Brown: My first assignment was -- I was assigned to the Criminal Investigations Division. Commissioner Spence -Jones: Okay. And how long were you there? Assistant Police Chief Brown: I guess roughly a year. Commissioner Spence -Jones: Roughly a year. Why did you move? Assistant Police Chief Brown: I was reassigned by the chief. Commissioner Spence -Jones: Okay. Just like you were assigned -- okay. So why were you reassigned? Assistant Police Chief Brown: I wasn't given a reason why. Commissioner Spence -Jones: Okay. Do you have any idea in your mind why you think you might have been --? What were you working on within that period of time? I'm just trying to get an idea as to like what was the cause of -- like I -- I'm assuming I know the cause why you got moved to like -- I don't want to say Siberia 'cause I'm going to get in trouble for saying Siberia. But -- Commissioner Suarez: You could say it. Commissioner Spence -Jones: I could say it, okay. I'm sorry. Why did you get moved from criminal -- from what now? Assistant Police Chief Brown: Criminal Investigations Division. Commissioner Spence -Jones: To what? Assistant Police Chief Brown: To the Administrative Division. Commissioner Spence -Jones: Okay. So you don't -- you never asked the chief why you were being moved? Assistant Police Chief Brown: No. Commissioner Spence -Jones: You have no -- did you not -- were you not curious as to why you were being moved? Assistant Police Chief Brown: Well, I was curious, butt never asked. Commissioner Spence -Jones: You never asked, okay. So you -- you also never asked when he moved you to -- Assistant Police Chief Brown: Well, I wasn't moved. Commissioner Spence -Jones: -- Siberia? Assistant Police Chief Brown: The last action, I wasn't moved. I was just stripped of all of my duties and responsibilities. City of Miami Page 146 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Okay. But -- okay. So -- but -- oh, I see what you're saying. So you still remained with the same position. Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: You just did not -- Assistant Police Chief Brown: You see, the -- it's common on especially major Police Departments to transfer staff around from one position to another. My movement from the Criminal Investigations Division to the Administrative Division was a lateral transfer. Commissioner Spence -Jones: Okay, it was a lateral transfer. Assistant Police Chief Brown: Yeah. Commissioner Spence -Jones: But just so that I could -- 'cause I'm a layman person. I don't know what happens in criminal investigations. Like, what is that? Is that like IA (Internal Affairs)? I don't -- what is --? Assistant Police Chief Brown: No. That's the investigation -- Commissioner Spence -Jones: Like what -- just give me an idea of what you would handle in -- as the person over that division? What would be your primary responsibility? Assistant Police Chief Brown: The business part of the investigation section, I don't -- my responsibility was not to investigate robberies, burglaries, homicides, auto theft. I did sexual batteries. I didn't investigate, but there's a business function associated with it to make sure that everything that the units need, they're equipped with it. Commissioner Spence -Jones: Okay. So you went from that, and you did that for a year with the chief. And then you were trans -- laterally transferred to -- Assistant Police Chief Brown: Administration. Commissioner Spence -Jones: -- administration. And you stayed there, I guess, up until this -- Assistant Police Chief Brown: Up until August -- well, I'm -- technically, I'm still there, up until August 8 -- Commissioner Spence -Jones: Okay. Assistant Police Chief Brown: -- when -- Commissioner Spence -Jones: So that leads me to a couple things. And I'm going to go to the August 5 e-mail, but before I do that -- because it would seem that, you know, after knowing someone for 25 years, immediately, I'm assuming, you came to his mind that he wanted to have you on the team. Obviously, something went wrong along the way. I'm not really sure. Maybe it was just a trust factor. Can't ask the chief that now. But maybe it was just a trust factor. I'm not really sure what happened. But obviously, there was a problem where -- which is not really identified, which is why I want to kind of drill down on it. Where did -- where was the love lost? I guess that would be the question. So on August 5 when this e-mail went out to -- from the chief to Johnny, it mentions that he believed that the senior staff members, including you, were engaged in conduct that was adversely affected police operations that -- so he made a statement that that was the case. Do you agree with that? Was there something that was going on that he felt was untrue? City of Miami Page 147 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Police Chief Brown: No. I was -- when I heard that, I was as shocked, probably as everybody else. See, the function that I have the Administrative Division is basically pushing paper, keeping the paperwork flow, checking, making sure that the Administrative Division operates properly, but everything that do is -- I'm responsible to the chief of Police. So at any time, ifI do make a decision that he doesn't agree with or it's not in accordance with our rules and regulations, he can change it. He can -- Commissioner Spence -Jones: So -- Assistant Police Chief Brown: Nothing goes out of the Police Department from -- without going through the chief of Police from me. Commissioner Spence -Jones: -- what -- andl guess I won't know this unless I've heard it from the chief. So you don't know what the conduct was at all? You have no idea? Assistant Police Chief Brown: The --I was informed because I did ask. Commissioner Spence -Jones: Yeah. Assistant Police Chief Brown: Andl asked the Manager what was the reason, and he said that he was told by the chief that I had given him bad numbers. Commissioner Spence -Jones: Bad numbers? Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: So that was the reason -- that was the -- that's -- you were engaged in conduct of giving bad numbers? Assistant Police Chief Brown: Well, I'm assuming. That's what I was informed of. But I don't -- my responsibility -- I oversee the budget unit. I don't put budgetary reports together or actually do the actual budget. I get information from our budget director who is trained in that function. I'm not trained in that function. So basically, I can transmit information from my budget unit to the chief of Police, as I do the other units. I also have the training unit. I'm not an expert in training, but I oversee the training unit. I don't make the day-to-day operational decisions of the units under me, but make sure that it is functioning properly. Commissioner Spence -Jones: So, Mr. Manager, can you just please put on the record so I'm clear of what the issue was communicated from you about Roy Brown from the chief? Was the fact that he, what, messed up the numbers, he didn't do a good job with the numbers? Mr. Martinez: Exactly. Andl said that in my opening statement. When I pressed the chief for cause for wanting to demote Roy Brown, he said he gave me bad numbers. I said, well why don't you get with the numbers people and try to work it out and reconcile. I'm sure it wasn't intentional. He didn't believe that. And he wanted to continue with the demotion. Commissioner Spence -Jones: Okay. So -- and I can't -- guess I can't even ask the chief now because the chief -- oh, I can ask the chief? Oh, you'll answer for -- I'm sorry. Mr. Chavez: Depending if I'm permitted to surrebuttal. Commissioner Spence -Jones: I'm sorry. Mr. Chavez: Depending if I'm permitted to surrebuttal, I will put the chief to explain that issue. City of Miami Page 148 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Okay. So I just need to finish my line of questions and then come back to that question when it's time for the chief to -- Mr. Chavez: Once the rebuttal case against us has been established, then I get my surrebuttal to that rebuttal, and I will -- Commissioner Spence -Jones: Okay, cool. Mr. Chavez: -- put the chief at that point -- Commissioner Spence -Jones: Because that's a question for me -- Mr. Chavez: -- for your benefit. Commissioner Spence -Jones: -- that's a huge question for me. Around the budget, if there's an issue -- if something was not done right, for whatever reason, then was that communicated to Roy. And if that -- who -- if it was communicated to Roy to make the changes or -- who actually communicate outside of you to Roy, only you? Mr. Martinez: Yeah. Commissioner Spence -Jones: So that was the only way that he knew about it? Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: Okay. So was there any -- I just want to be clear -- thing written up from the chief to you -- Assistant Police Chief Brown: No. Commissioner Spence -Jones: -- to say this is the cause for it? Assistant Police Chief Brown: No. Commissioner Spence -Jones: Or -- so he never had -- did he ever communicate to you at all that the budget was a problem? Assistant Police Chief Brown: No. Commissioner Spence -Jones: Okay. Did you guys have a hearing here at all about the budget? Was there a budget hearing or some kind of hearing, guys, here about the budget? No? Assistant Police Chief Brown: Not about the budget, but I believe there was a Commission hearing, and the FOP (Fraternal Order of Police) raised some budgetary issues. Commissioner Spence -Jones: Concerns? Chair Gort: Yeah. That was the -- Commissioner Sarnoff. Yeah. That was the -- Chair Gort: -- discussion in one of the Commission meetings. Commissioner Spence -Jones: Okay. I'm just trying to understand 'cause I know that in my City of Miami Page 149 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 briefing with you, you mentioned to me that there was -- my first -- very first date with you, you mentioned to me something about -- because I couldn't understand why this was happening. And you mentioned something about, you know, the chief was a little upset, or the issue about the numbers were not correct, the numbers were given to -- one number was -- set of numbers were given to the chief and then he -- by Roy. And when he got here, the numbers were different. I'm not really sure what the flow of what was happening, but obviously the chief felt, for whatever reason, the ball was dropped and put him in an, you know, uncompromising position. That's kind of what was communicated to me from you, correct? Okay. So there was no other way to resolve this -- I'm just curious -- issue but to take us here for this? Mr. Martinez: I asked him to rehuddle with the numbers people, with Roy and Mae Shepherd and our budget people and try to reconcile the number. Commissioner Spence -Jones: And then the reaction to that was I don't want -- Mr. Martinez: No. Commissioner Spence -Jones: -- to do it with him. I just want him to -- Mr. Martinez: Demoted. Commissioner Spence -Jones: -- demoted. Mr. Martinez: Right. Commissioner Spence -Jones: Wow. Okay. All right. The other question I had -- and -- as -- just so I'm clear, I know that we talked about earlier there were three investigations I guess over - - when -- over the IA. I had a concern about the fact that IA has now has the, you know -- now - - I'm assuming you're over IA now, correct? Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: Okay. So my concern earlier that there were three individuals. The only person in -- based upon your conversation with the chief he told you that there was an investigation going on and these three, there was some issues going on with them. But when you got with him, I'm assuming the chief -- the -- Mr. Martinez: Right. Commissioner Spence -Jones: -- interim chief -- and I'm assuming it's Roy now at this point. Vice Chair Carollo: No, no. Assistant Police Chief Brown: No. The interim chief is Manny Orosa. Commissioner Spence -Jones: Okay. So it was -- you got with the interim chief correct? Mr. Martinez: Right. Commissioner Spence -Jones: And he told you that these weren't really -- there were -- two of the investigations were not -- there was nothing found in the files regarding them, but there was something found in the files regarding Roy? Mr. Martinez: Yes. City of Miami Page 150 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: And that was prior to Roy coming -- that was something the chief was already aware of? Mr. Martinez: Yes, the chief was aware of that when he demoted -- Commissioner Spence -Jones: Was it still a pending investigation -- Mr. Martinez: Apparently it's a pending -- Commissioner Spence -Jones: -- or it was closed? Mr. Martinez: And Chief -- Commissioner Spence -Jones: And I'm not trying to put your business -- Mr. Martinez: -- Orosa can -- Commissioner Spence -Jones: -- out in the street. I just want to see if it was a closed investigation or open one. Mr. Martinez: -- expand on that. But apparently, it's an investigation of many years ago that was just left open, even though apparently -- Commissioner Spence -Jones: Oh, okay. Mr. Martinez: -- it could have been closed -- Commissioner Spence -Jones: Okay. It wasn't something that they were actively involved in right now? Mr. Martinez: No. Commissioner Spence -Jones: Okay. So -- wow. Okay. So that was one of my main questions. What was the -- so now you are over IA? So you're the person that we're looking at that's entrusting these files, 'cause that was a question that came up earlier? All of a sudden, you know Vice Chair Carollo: Mr. Chairman, hold on. Chair Gort: Yes. Vice Chair Carollo: I just want to make sure. Are you the person in charge of IA or is IA within your --? Assistant Police Chief Brown: Within my -- Vice Chair Carollo: -- scope? Assistant Police Chief Brown: Right. Vice Chair Carollo: But you're not the person --? Assistant Police Chief Brown: No, I'm not hands on, day-to-day operations. Vice Chair Carollo: Right. City of Miami Page 151 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Okay. Vice Chair Carollo: But I just want to make sure that we have clarity. Chair Gort: He's the supervisor. Commissioner Spence -Jones: Okay, all right. So you're the new chief over -- Assistant Police Chief Brown: Chief that the person in charge of IA reports to me. Commissioner Spence -Jones: Okay. Assistant Police Chief Brown: But the day-to-day operation of it, I'm not involved in the day-to-day operation of it or any investigations or anything going on there . Commissioner Spence -Jones: Okay. I -- this is my last question in closing. And Roy, you did say that you felt that this was some form of retaliation. I do have great concern when, you know -- my former -- one of the Commissioners sitting up here -- I don't know who brought it up. Again, I keep going back to -- that's why I asked for the continuance. But earlier when we started this whole thing, we talked about someone -- someone mentioned well, we can't have two chiefs getting paid at the same time, or something to that effect, because you know, financially, it's something -- it's a burden on us to do that. So now we find ourself in the same situation with you if we're looking at -- not right now, but let's say prior to all of this stuff happening. Basically, what you're telling me is you were still the assistant chief correct? Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: But you were the assistant chief that didn't have any responsibilities? Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: And no one ever communicated to you what you need to do? Assistant Police Chief Brown: No. Commissioner Spence -Jones: So you sat there for how many weeks, a week, two weeks or --? Assistant Police Chief Brown: It's been about a month. Commissioner Spence -Jones: About a month. Commissioner Suarez: And we were paying for his full salary. I think was -- Commissioner Spence -Jones: I'm just blown away. It's like we -- the double standards kill me, you know. So we really -- I don't even know why we're here, honestly. I really don't know where we're here. It just seems like it just could have been a conversation that we dealt with this and moved on. And for this thing to be blown out of proportion, the chiefs family hurting; I'm sure on your side, you're hurting, Johnny. You got people that are being affected by our decisions. This is not okay, you know. And personally, me sitting up here and listening to the evidence -- andl'm going to do the right thing, no matter what -- I just feel like we could have resolved this right the way. We could have resolved this the right way, Mr. Manager. And you know, the chief 37-year veteran. I mean, you mean to tell me we couldn't have found a more dignified way to handle this, regardless of whether or not we have personal differences? These are people that City of Miami Page 152 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 their families are going to be affected by whatever we do. Roy Brown, 36 years on the force. Look at the division this has caused in the City. I just don't even know what we're doing, and it doesn't make any sense. I just don't understand why we couldn't have just sat down and worked this out. On a Friday night, we're sitting here at 8 o'clock at night figuring out something we could have done -- this is just insane to me. This is insanity. I just want to put that on the record, because if you're having -- you have a person here that clearly saying he felt retaliated against and, for whatever reason, was put in a corner because maybe perhaps there was a miscommunication -- Mr. Manager, I just would wish you would have said, you know what; I'm your boss. I want you to get all three people in the same room, and we're going to work this out. I don't understand why that couldn't happen. Commissioner Suarez: That's right. Chair Gort: Yep. Commissioner Spence -Jones: Am I crazy? Chair Gort: Nope. Vice Chair Carollo: Not at all. Applause). Commissioner Spence -Jones: I need to take a break. I'm finished, Mr. Chairman. I need to go. Mr. Milian: Mr. Chairman, can we have a break? Chair Gort: Want to take five? Vice Chair Carollo: Yes. [Later... Chair Gort: Okay, where are we? Mr. Milian: Mr. Chairman, may I proceed? Chair Gort: Yes, sir. Mr. Milian: Mr. Chairman, I have very brief redirect of Chief Brown, ifI may? Chair Gort: Okay. Mr. Milian: Chief Brown, would you be kind enough to retake the podium. Chief I have two brief questions on redirect. Number one has to do with any kind of notification or counseling. Would it be correct to say when you told Commissioner Spence -Jones that you were never brought in for any kind of counseling, correct? Assistant Police Chief Brown: That's correct. Mr. Milian: And finally, when you were in charge of the criminal investigative division, did you also supervise shootings, homicides that took place in the streets of the City ofMiami? Assistant Police Chief Brown: Yes. City ofMiami Page 153 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: And that included police shootings as well? Assistant Police Chief Brown: Yes. Mr. Milian: No further questions. Chair Gort: Okay. Commissioner Spence -Jones: Does anybody have any --? Chair Gort: That's it. Mr. Chavez: No questions from me. Commissioner Spence -Jones: Okay. So then I'm going to -- just going to close out. Am I able to say anything? Okay. So -- 'cause when I asked you the first time, you were responsible for the criminal division. Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: Andl guess your attorney asked you about the shootings. Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: Okay. Which you know is something I'm very sensitive about. Assistant Police Chief Brown: Yes. Commissioner Spence -Jones: Just 'cause of all the other issues that are associated with this. So why were you transferred from that to the other? Do you think that there was any -- was there any issue around that? Assistant Police Chief Brown: Well, there were concerns -- you know, the shootings were under investigation, andl can't -- I don't want to get too much into the shootings itself, but did supervise it. And in the middle of that process, I was transferred. Commissioner Spence -Jones: In the middle of the process. And you had no idea why? Assistant Police Chief Brown: No. I was never told why. Commissioner Spence -Jones: Did you ask why? Assistant Police Chief Brown: I didn't ask why. Commissioner Spence -Jones: Okay. Mr. Chavez: Mr. Chairman. Commissioner Spence -Jones: I'm done. Chair Gort: Yes. Mr. Chavez: Mr. Chairman, may ask a brief question so that can address a concern? Chair Gort: Sure. City of Miami Page 154 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Chief Brown, how much investigative experience do you have? Assistant Police Chief Brown: I spent I believe in '78 through -- I spent about three years in robbery investigations. Mr. Chavez: Other than robbery for three years, would it be fair to say that that is the extent of your investigative experience? Assistant Police Chief Brown: Yes. Mr. Chavez: Thank you. Chair Gort: Okay. Mr. Milian: May I continue? Chair Gort: Yes, yes. Mr. Milian: Mr. Chairman, we would like now to call Commander Ricardo Roque to the witness stand. Chair Gort: Witness stand. Mr. Milian: Sir, would you state your name for the record. Commander Ricardo Roque: Ricardo Roque. Mr. Milian: Would you spell your last name? Commander Roque: R-O-Q-U-E. Mr. Milian: And would you tell the Commissioners what you do for a living? Commander Roque: I'm a commander for the City ofMiami Police Department, assigned to the Flagami area. Mr. Milian: And how long have you been a law enforcement officer? Commander Roque: Thirty-one years. Mr. Milian: And in that capacity, would you briefly tell the Commissioners what experience you've had in law enforcement? Commander Roque: I became an officer, promoted to the rank of sergeant, promoted to the rank of lieutenant; last promotion was to the rank of commander. Meanwhile, I worked as the commander of the Special Investigations Section/Narcotics Unit, commander of the Juvenile Gang Detail; commander of the downtown beats, and several other functions. Mr. Milian: Now what was your latest assignment in the Miami Police Department? Commander Roque: I was in charge of the Flagami NET (Neighborhood Enhancement Team) area, which is from 27Avenue to the Palmetto, from Southwest 8th Street to the 836, making sure of crime -- keep crime down, redeploying all the officers that I had on the beat to make sure that all the concerns from the citizens were addressed; going into citizen meetings to hear the City ofMiami Page 155 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 concerns and be able to redeploy my officers to their concern; taking care of all the complaints that came from City Hall, my Commissioners and other citizens in the area. Mr. Milian: And when did you assume that particular command? Commander Roque: November 2009. Mr. Milian: And at the time who was the chief of the City ofMiami Police Department? Commander Roque: ChiefExposito. Mr. Milian: And how long were you serving as commander of that particular command under Chief Exposito? Commander Roque: To August 8. Mr. Milian: Let me ask you this question. In the time that you've been a law enforcement officer, have you become familiar with the issues of how to run a paramilitary organization? Commander Roque: Yes. Mr. Milian: Have you come into familiarity with what is command and control? Commander Roque: Yes. Mr. Milian: Have you come into familiarity with what is chain of command? Commander Roque: Yes. Mr. Milian: And have you been involved in relations including subordinate to leader? Commander Roque: Yes. Mr. Milian: Have you had supervisory responsibilities during that period of time? Commander Roque: Yes. Mr. Milian: Have you been responsible at any of those times for issuing discipline from a written reprimand up to and including discipline which could include termination? Commander Roque: Yes. Mr. Milian: And during that period of time, have you before experienced in the process of how to handle disciplinary problems within the command? Commander Roque: Yes. Mr. Milian: During that time have you ever issued disciplinary actions against a law enforcement officer? Commander Roque: No. Mr. Milian: And during that time have you been a part of the process of having discipline issued to a law enforcement officer? City ofMiami Page 156 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commander Roque: Yes. Mr. Milian: Now when a law enforcement officer is considered to, in some way, have violated any rules, policies, or procedures, is that officer counseled? Commander Roque: Yes. Mr. Milian: Is that officer put on notice? Commander Roque: Yes. Mr. Milian: Is that officer given a due process opportunity to be told exactly what he has done wrong and given an opportunity to respond or give cause why he should not be disciplined? Commander Roque: Yes. Mr. Milian: Now you said you were in your command until August 8. Commander Roque: Correct. Mr. Milian: Now would you tell the Commissioners, in your own words, what exactly happened on August 8 to change your status? Commander Roque: I was off that date. I was given a call by one of my friends, a lieutenant from the Police Department, that a e-mail has been forwarded to all the MPD (Miami Police Department) users stripping me of all the powers from the Flagami NET area and redirecting my lieutenants, my sergeants, and my officers to report directly to the major of police in the South district and not to me. Mr. Milian: Now you're referring to an e-mail. Was that e-mail sent uniquely and specifically to you, or was it put out for general distribution? Commander Roque: It was put out for general distribution. Mr. Milian: And when you say throughout the Police Department, does that include any certified law enforcement officer who had access to the computer system, would have had access to that information immediately? Commander Roque: Yes, sir. Mr. Milian: Were you ever brought in for a counseling statement before that August 8 electronic mail? Commander Roque: No, sir. Mr. Milian: Were you ever contacted by a superior, a supervisor, or anybody in the chain of command and given any kind of record of counseling? Commander Roque: No, sir. Mr. Milian: Were you ever brought in for any kind of a verbal reprimand? Commander Roque: No, sir. Mr. Milian: Were you ever put on notice that you were under either administrative City of Miami Page 157 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 investigation? Commander Roque: Not at that point. Mr. Milian: How 'bout criminal investigation? Commander Roque: No, sir. Mr. Milian: Were you ever called in by the chief's office and given any counseling whatsoever regarding the change of your status? Commander Roque: No, sir. Mr. Milian: Now I would like you to explain to the Commissioners, given the directive that you received on August 8, were you stripped of your operational and administrative responsibilities? Commander Roque: Yes, I was. Mr. Milian: In effect, in your mind, given the directive that you had received, what did you have to do as a police officer after you received that directive on August 8? Commander Roque: Nothing. They were -- all powers were stripped. Mr. Milian: And would you tell the Commissioners, did you consider that a demotion? Commander Roque: Sure, I did. Mr. Milian: Now much has been made here of the talk of rank in the case of Chief Brown. Why do you consider it a demotion to have been stripped of your command, operational and administrative authority? Commander Roque: Because after 31 years working as a law enforcement directing and supervising officers and doing all the administrative paperwork, ifI am to come into work, sit in an office and not do anything, that is, for me, a demotion. Mr. Milian: At any time were you afforded any opportunity to explain or question or seek cause why you had been stripped of all your operational and administrative responsibilities? Commander Roque: No, sir. Mr. Milian: Have you received any letter from the then -chief of Police Exposito explaining his position to you? Commander Roque: No, sir. Mr. Milian: Would it be your opinion that after 31 years in law enforcement, you were not given any due process notification of any adverse action that was being taken against you? Commander Roque: Correct. Mr. Milian: I'd like you to explain to the Commissioners -- you said earlier that you were stripped of your operational and administrative responsibilities. Does this mean -- andl mean it with all respect -- that in effect you were getting paid to wear a uniform and sit in an office? Commander Roque: Correct. City of Miami Page 158 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: And if there had been a crisis in the City ofMiami at that time, regardless of the type of crisis that would have occurred, would you have been in a position in exercise your administrative or operational responsibilities given the directive that Chief Exposito issued against you? Commander Roque: I would have been in violation of the direct order. Mr. Milian: So that if you were to have taken any actions as a police commander for the City of Miami Police Department, with 31 years of experience, you would have taken any action whatsoever in assisting or trying to react to a crisis, it is your estimation that you have been in direct violation of an order of the chief? Commander Roque: Correct. Mr. Milian: And in fact, would it be fair to say that you have been neutered completely of any and all responsibilities as a law enforcement officer? Commander Roque: Yes. Mr. Chavez: Mr. Chairman, I would like the word heutered"strickenfrom the record. Chair Gort: Excuse me; which one? Mr. Chavez: Neutered. Chair Gort: Okay. Mr. Chavez: I believe he asked Officer Roque if he was neutered. Mr. Milian: I said was -- Commissioner Suarez: A metaphor. Mr. Milian: -- this was the question that I asked. Was it his opinion as a law enforcement officer with a rank of commander after 31 years that, in effect, the directive of the chief had neutered him of his responsibilities as a police officer. Mr. Chavez: Same objection. Move to strike. Mr. Milian: I will rephrase the question, Mr. Chairman. Would it have been your opinion that your status as a law enforcement officer for the people of the City ofMiami had effectively been gutted by the directive of the chief? Commander Roque: Yes. Mr. Milian: Now let's go back to this whole situation. Never once you said you had been called in for any kind of a record of counseling. Have you ever, to this day, had an opportunity with Chief Exposito, who was the chief at the time, sat down with you and provided you any follow-up statements as to why you were demoted? Commander Roque: No, sir. Mr. Milian: And tell us, what is your current status with the Department? Commander Roque: I'm assigned to administrative duties, central station, with no assignment City ofMiami Page 159 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 whatsoevers [sic]. Mr. Milian: Okay. Now you said that you had not been put on any notification. As a result of the actions taken by Chief Exposito without any just cause, have you decided to take any legal action yourself? Commander Roque: I filed a work hostile environment. Mr. Milian: And without getting into any of the particulars or any attorney -client privilege information, I'd like to ask you if the catalyst, the issue that incited your reaction legally was predicated upon the actions of Chief Exposito? Commander Roque: Yes. Mr. Milian: Now it wasn't your intention to leave the City ofMiami Police Department. Is that correct? Commander Roque: Correct. Mr. Milian: In your 31 years as a law enforcement officer, serving in the different positions you explained to the Commissioners, have you ever seen an officer in a command position such as yourself be stripped of his responsibilities, operationally and administratively, but told to sit in uniform and do nothing? Commander Roque: No. Mr. Milian: Thank you. I have no further questions. Chair Gort: Thank you. Yes, sir. Commissioner Suarez: I have questions. Chair Gort: Yes, sir. Commissioner Suarez: Before we cross-examine. Commander Roque. Commander Roque: Yes. Commissioner Suarez: Are you aware of what a crime watch meeting is? Commander Roque: Yes, sir. Commissioner Suarez: Can you briefly describe one? Commander Roque: We do a meeting with all the citizens in the area affected. We bring experts. We talk about crime, things that they need to change, things thatl can do to change it, and we come to a plan of action that -- to reduce the crime in that area. Commissioner Suarez: Would you say that you routinely attend them? Commander Roque: Many of them. Commissioner Suarez: What percentage of the total would you say that you estimate that you attend? City ofMiami Page 160 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commander Roque: I was attending three to four meetings a week, sometimes two a day. Commissioner Suarez: As a percentage of the total, 80 percent, 20 percent, 40 percent? Commander Roque: Around 80 percent. Commissioner Suarez: Okay. How many of those did I attend? Commander Roque: About 80 -- 100 percent. Commissioner Suarez: Would you consider that to be part of your responsibilities as a commander? Commander Roque: Yes. Commissioner Suarez: On August 10 are you aware that there was a crime watch meeting on 51 stAvenue and Southwest 5th Street? Commander Roque: I was. Commissioner Suarez: Did you attend that meeting? Commander Roque: No. Commissioner Suarez: Why did you not attend that meeting? Commander Roque: Because I was relieve of my duties. Commissioner Suarez: Thank you. Mr. Chavez: May it please the Commission. Commissioner Spence -Jones: Are we open to --? Chair Gort: Yes. Commissioner Spence -Jones: -- do the whole Commission? Chair Gort: You have any questions? Commissioner Spence -Jones: I had just -- mine are going to be very simple. How long have you known ChiefExposito? Commander Roque: For the 31 years that I've been in the Department. Commissioner Spence -Jones: For 31. And did you get this position after he came on board? Commander Roque: Yes, ma'am. Commissioner Spence -Jones: So he -- it was a promotion for you? Commander Roque: Yes, ma'am. Commissioner Spence -Jones: Okay. When you learned -- 'cause we keep -- this is the second time we're coming up where you weren't -- both people were not notified. How did you find out City of Miami Page 161 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 again? Commander Roque: A lieutenant from the Miami Police Department, a friend of mine called me up and told me that ifI had read the e-mail that was sent to all the MPD users -- Commissioner Spence -Jones: Okay. Commander Roque: -- and I said no. Then I looked at my form that I get all the MPD, and I read the e-mail then. Commissioner Spence -Jones: Did you ask the chief? Did you at least ask the chief why? Commander Roque: No. Commissioner Spence -Jones: Who did you notify once you saw that? Did you speak to anybody in the Manager's or Mayor's or anybody's office? Commander Roque: No. I spoke to the Manager couple of days later to see if he was aware of the demotion and if he was aware why I was being demoted, and he said something about being under investigation. Commissioner Spence -Jones: Okay. So did we ever find out what the investigation was or there was no investigation? Commander Roque: There -- Commissioner Spence -Jones: No investigation? Mr. Martinez: The Facebook thing. The -- Mr. Milian: Well, Commissioner, I think because of Florida laws, unless a case that is part of an administrative action, we shouldn't get into the details -- Commissioner Spence -Jones: Okay. So it is -- Mr. Chavez: -- unless it's been closed. Commissioner Spence -Jones: Okay. So there's an active case going on? Mr. Milian: I think that we should address that to the acting chief at this time, but I think that it puts an officer in a bad position -- Commissioner Spence -Jones: It's okay. Mr. Milian: -- to answer questions about any pending or active investigation. Commissioner Spence -Jones: But -- and that's what's really confusing to me, because earlier we said there was only -- there were three -- I mean, there were three pending investigations. And then in the hearing we said, well, no. Two of them wasn't, but we had one, which was Roy, which is something old. So this is new information? Mr. Martinez: Well, apparently the status of the -- or the picture of Commander Roque on Facebook is about to be closed out. Commissioner Spence -Jones: Yeah. So there -- but -- so -- but there's still -- City of Miami Page 162 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Yeah. Commissioner Spence -Jones: Okay. So there's actually -- so -- Mr. Martinez: Two. Commissioner Spence -Jones: -- just to make sure we're on the same page, because earlier -- we announced earlier there was only one investigation. Mr. Martinez: Right. Commissioner Spence -Jones: So there's actually two. Okay. All right. So you've known Exposito for a long time. He promoted you. You learned ofyour assignment by way ofyour -- I guess somebody called you, and then you reached out to the Manager's office to see if he was notified of it. And you never, ever went to the chief and asked him why? Commander Roque: No. Commissioner Spence -Jones: Okay. Can I just ask you just so that I just want to know? You know, for -- why did the relationship sour? Why do you feel the relationship soured? Commander Roque: I don't have an answer for that. Commissioner Spence -Jones: You have -- Commander Roque: I don't know, because I always respected him. Commissioner Spence -Jones: I mean, it just didn't happen -- Commander Roque: And always did my job, so -- Commissioner Spence -Jones: -- on that one day, right? I mean, did it like -- did you start feeling the tension before that happened? Commander Roque: Yes. Commissioner Spence -Jones: Okay. And did you attempt to at least have a conversation with him then? Commander Roque: We had a conversation back in November of 2010, I believe it was. Commissioner Spence -Jones: Do you mind me, counsel, asking what was the conversation? Commander Roque: I believe -- Commissioner Spence -Jones: What -- was it you coming to him saying that you're uncomfortable or --? Commander Roque: No. Commissioner Spence -Jones: Had something changed in our relationship or --? I'm just trying to understand what happened. Commander Roque: A year ago I found out that he tried to demote me. I don't know what was City of Miami Page 163 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 the status of -- and what was the reason. I don't know why he demote me. He brought me into the office. We had a conversation. Andl told him, chief I have always respected you; done my job. I sleep every night. So I have no problem whatsoever. He says, well, I promoted you and can demote you. I said, chief I sleep every night. I do my job, I said, you know -- Commissioner Spence -Jones: Okay Commander Roque: -- on the letter of the law, so whatever your orders are, I reply [sic] by that. Commissioner Spence -Jones: Okay. So you don't feel that -- you felt that this was -- do you feel like this was retaliation as well? Commander Roque: Yes, ma'am. Commissioner Spence -Jones: Okay. So why do you feel like it was retaliation? 'Cause I -- he -- Chief Brown said he felt retaliated because he messed up the numbers, okay. What would you feel your -- what's the reason for your retaliation then? Commander Roque: The friendship that I have with the ex -deputy of police, Luis Cabrera, and the people around Luis Cabrera. I think we had been point out as part of Luis Cabrera clique, I guess, and -- which I wasn't, but I guess that's how everything started. Commissioner Spence -Jones: Okay, I gotcha. All right. So it was the relationship that y'all had? Commander Roque: Yes. Commissioner Spence -Jones: Okay. Thank you. Mr. Chavez: Mr. Commissioner. Chair Gort: Yes. Mr. Chavez: Mr. Chairman. Officer Roque, please describe the difference between -- well, what's a rollback? Commander Roque: Rollback is when you roll back to your civil service rank. Mr. Chavez: Were you rolled back? Commander Roque: No. Mr. Chavez: You retained -- well -- and just for the benefit, what was your rank on August 5, 2011? Commander Roque: Commander of police. Mr. Chavez: What is your rank as of August 8 through the present? Commander Roque: Commander of police. Mr. Chavez: Did you suffer any diminution in your income in terms of salary and benefits from the Department of Police? Commander Roque: No. City of Miami Page 164 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Are rollbacks a disciplinary action? Commander Roque: Sometimes they are. Sometimes they don't. Mr. Chavez: Okay. So in this case was yours a disciplinary action? Commander Roque: I haven't been told. Mr. Chavez: Okay. Do you know the difference between the two? Commander Roque: Yes, I do: Mr. Chavez: Okay. So please explain when is a rollback a disciplinary action and when is it not. Commander Roque: A disciplinary action is when you violate any of the departmental orders and you are found guilty and you're rolled back based on that. The other one is when the chief feels that he wants to roll me back. Mr. Chavez: Okay. So when you violate departmental orders, that's a disciplinary rollback? Commander Roque: Correct. Mr. Chavez: And when the chief just wants to roll you back, you're serving at the discretion of the chief correct? Commander Roque: Correct. Mr. Chavez: Now you're aware of any arrests at a tobacco store at Northwest 36th Avenue and 7th Street? Commander Roque: What was that? Mr. Chavez: Are you aware of any arrests in the past at a tobacco store located at Northwest 36th Avenue and 7th Street? Commander Roque: Yes. Mr. Chavez: Let me just understand something. Your opinion that you were effectively demoted, that's your opinion based on the circumstances, correct? Commander Roque: No. It's based on what I'm doing right now. I have been stripped completely of my powers. I have no powers as a commander of police. Mr. Chavez: Do you report to someone now? Commander Roque: I report to another commander in the Central district. Mr. Chavez: And that person's responsible for issuing duties and responsibilities to you, correct? Commander Roque: Correct. Mr. Chavez: So -- City of Miami Page 165 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: Has he in fact issued any? Commander Roque: None. Mr. Chavez: Okay. Have you asked him? Commander Roque: Yes. I called him, andl asked him what were my new assignments. He said just report to the central station. When you report, just contact me. Make sure that you don't get lost. You go out for your half an hour lunch, come back. They don't want you driving around the districts. Mr. Chavez: Now, ultimately, the investigation related to the Facebook. Do you have a departmental computer? Commander Roque: Yes, I do. Mr. Chavez: Do you keep sensitive information in there? Commander Roque: Yes, I do. Mr. Chavez: So is it important to keep that under your possession and control at all times so that no one has access to that? Commander Roque: Yes. Mr. Chavez: Did anybody use that computer? Commander Roque: If they did, it was on the -- Mr. Milian: Mr. Chairman, the only caveat that have is an objection based on Florida law. He's getting into inquiry about an open IA investigation. Ms. Thompson: Excuse me. Chair -- Chair Gort: You got to speak in the mike. Ms. Thompson: -- none of this is being recorded off the mike. Mr. Chavez: I'll withdraw the question. Chair Gort: Okay. Mr. Chavez: I have nothing further. Chair Gort: Thank you. Any further questions? Mr. Milian: Yes, Mr. Chairman. Very briefly. Chair Gort: Any Commissioners? Any questions? Commissioner Sarnoff.. I have some. Chair Gort: Yes, sir. City of Miami Page 166 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff.. How long have you been as a -- how long have you been a supervisor? Commander Roque: Over 20 years. I believe the first time I was promoted to the rank of sergeant was in 1990. Commissioner Sarnoff.. Okay. And in over 20 years you've never issued disciplinary action? Commander Roque: For minor things. Commissioner Sarnoff.. I thought you testified you've never issued disciplinary action. Commander Roque: Well, the way that he was saying for disciplinary action for rollbacks and bigger -- and higher disciplinary action. Commissioner Sarnoff.. So in 20 years you've only issued minor disciplinary, but nothing -- Commander Roque: Accidents, officers getting involved in accidents. I never had any problem with officer disregarding my direct orders. All of my officers that I worked with, when they had a problem, I was able to solve it by calling him into the office and getting things done. Commissioner Sarnoff.. You aware that officer -- I guess he's actually -- I guess he's still deputy chief or Chief Brown has been reassigned to IA, right? Commander Roque: Assistant Chief Brown? Commissioner Sarnoff.. Yeah. Commander Roque: I didn't know that. Commissioner Sarnoff.. I'm sorry; Assistant Chief Brown. Commander Roque: No, I didn't know that. Commissioner Sarnoff.. You didn't know that? Commander Roque: I found out now here when he made the statements. Commissioner Sarnoff.. Have you ever gone to Chief Orosa and asked him why you're not being reassigned? Commander Roque: No, I have not. Commissioner Sarnoff.. Don't you think that's something you'd be -- want to do now? Commander Roque: Well, right now I'm taking time off because I'm dealing with some medical issue at home, so I haven't had time to go to Manny and ask him -- You know, Chief Orosa, and ask him, you know, what's -- Commissioner Sarnoff.. You've taken time off since when? Commander Roque: Huh? Commissioner Sarnoff.. How long have you -- when did you start taking time off? Commander Roque: Directly, about a month and a half ago. City of Miami Page 167 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. You haven't been to work in actually a little over -- I think it's a little over 55 days, right? Commander Roque: Correct. Commissioner Sarnoff. What kind of -- is that comp time? Commander Roque: No. It's medical leave of absence. I have -- Commissioner Sarnoff. Okay. Thank you. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes. Vice Chair Carollo: So in essence, it's not like you've been just riding around or doing nothing in a station. In essence, you've been at home or -- Commander Roque: Right. I haven't been at the station and riding around because I haven't been there -- I'm taking care of my wife. But the direct orders that got is when you come in, this is your assignments. Vice Chair Carollo: Okay. I just -- okay. But you haven't physically been there at the station or gone or so forth because --? Commander Roque: No, sir. I've been dealing with the problems at home. Vice Chair Carollo: Okay. Mr. Milian: Mr. Chairman, any other Commissioners, or may I proceed? Chair Gort: No further questions? Vice Chair Carollo: I'm sorry. Mr. Chairman, when was that meeting, that crime watch meeting? Commissioner Suarez: August 10. Vice Chair Carollo: In August 10, were you in ML -- whatever it's called, the medical leave? Commander Roque: I was off. I related [sic] to my NET Administrator, Ana Rodriguez, that I was planning to go there prior to all this, and then I had to come back and cancel it because I was reassigned. The -- it was in my schedule even that I was off because it was in the afternoon that was going to attend that meeting, because I have always attended all the community meetings with my Commissioner to be able to resolve the problems it was. So that meeting's always at the afternoon, andl was going to do it at my own time, like I have done before. Vice Chair Carollo: Right. But it just -- and again, I just want clarity 'cause it doesn't -- something just doesn't seem right to me. You said that you've been on medical leave. I forgot what were the acronyms. But anyway, you -- Commander Roque: For like two months. Vice Chair Carollo: -- were on medical leave, let's say, for 50, 55 days -- City of Miami Page 168 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commander Roque: Correct. Vice Chair Carollo: -- you said. And I'm thinking August 10. Well, wait a second. You were on medical leave during that time. And when he asked you why didn't you attend, you said because I was stripped of all powers. But in all fairness, you were on medical leave. Commander Roque: Even before thatl was out on medical leave, I was doing all my workfrom my phone, my computer at home, and contacting my lieutenants and sergeants from the office, because I kept receiving calls from the Commissioners, the citizens, andl kept redirecting my lieutenant to do those type of things. Important meetings, like community meetings, crime watch meetings, I always attended them. That was scheduled for me to attend, even though I was in medical leave. Vice Chair Carollo: Hold on. Maybe it's late and I'm hearing wrong. You said that even though you were off you were still contacting lieutenants and --? Commander Roque: Yes. I still directed the operation of Flagami being off. Vice Chair Carollo: But I thought you were stripped of all your powers? Commander Roque: No. I said before that. Chair Gort: Before. Commander Roque: Let me explain to you. Vice Chair Carollo: Before. Commander Roque: Before thatl was already on medical leave, andl continued to workfrom the phone, directing all the operations of Flagami. As soon as I was told that I was stripped from the powers, then that's when everything got canceled. Even that week thatl was supposed to be in medical leave, I was a staff duty officer, andl was working as a staff duty officer. And came back to work, started working as a staff duty officer. As soon as I was given the order to cease and desist andl was stripped of all the powers, I contacted Chief Blom and told him thatl was the acting staff duty officer for the City. Didl continue with that assignment or they were going to reassign somebody else? And he told me that they were reassigning somebody else, not to continue to do it. But I was still working, because I was able to take care of the wife and be able to take care the problems with Flagami NET area from the house and directing lieutenants and sergeants in the operations that I needed to do. Vice Chair Carollo: Even though you weren't required to because, in essence, you were on medical leave. Commander Roque: Correct. I care for the community that I work for. Applause. Chair Gort: Excuse me. Let's keep that down, please. It's 9 o'clock already. We've been here 12 hours and -- yes, go ahead. Vice Chair Carollo: Okay. I don't have any further questions. It's just -- Chair Gort: Let me ask a question because I'm not familiar with this. When you're on medical leave, you report and you get the permission to be on medical leave. City of Miami Page 169 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commander Roque: Correct. Chair Gort: At the same time, you're not supposed to be working. But although you were not supposed to be working, you inform your supervisor that you were conducting a meeting, because I know you went to a couple of meetings that I had. Commander Roque: Correct. The problem is that it wasn't me; it was my wife. Chair Gort: I understand. Commander Roque: So to take care of my wife and the things that she's going through, I requested that medical leave. It was approve, but I continued to do my responsibility as a commander -- Chair Gort: Right. Commander Roque: -- you know, through the phone, calling the lieutenants or sergeants. I still got all the phone calls from the community and their concern, which I related to the NET Administrator, my NROs (Neighborhood Resource Officers) andl continue that. Physically, I wasn't in the office. My lieutenant -- Chair Gort: I understand. Commander Roque: -- was doing the paperwork. Chair Gort: But my question is, the administration and your supervisor were notified that you were performing that duty? Commander Roque: Yes. Back then -- Chair Gort: Okay. Commander Roque: -- it was Major Caceres. Chair Gort: Thank you. Commander Roque: He knew that was attending. Chair Gort: And you had the okay from the -- from your supervisor? Commander Roque: Yes. Acting Commander Jones was also the acting major, and she knew when I was going to attend the meetings. Chair Gort: Okay. Thank you. Mr. Milian: In light of the answers of the commander, I have no further questions at this point. Chair Gort: Okay. Thank you. Any Commissioner, anyone? Mr. Milian: May he be excused? Chair Gort: Yeah. Mr. Milian: Thank you. Mr. Chairman, now we would like to call Commander Jose Perez. City of Miami Page 170 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Would you please state your name for the record; spell your last name. Commander Jose Perez: Sure, sure. My name is Jose Perez, P-E-R-E-Z. Mr. Milian: And would you tell us what you do for a living? Commander Perez: I'm a -- well, I guess I'm still police commander for the City ofMiami Police. Mr. Milian: How long have you been a law enforcement officer? Commander Perez: Sir, approximately 20 years. Mr. Milian: And tell us briefly what kind of assignments have you had over those 20 years? Commander Perez: Sir, I started in patrol. After that went to special investigation services and the special investigation section. I work the ICE Squad, the International Currency Enforcement. I was also doing money laundering. I was doing drugs, assisting the drug unit with the investigations. After that went to the burglary unit. I was a burglary supervisor, conducting investigations. I was there for a while. Then I was transferred to Internal Affairs. I was in both, Internal Affairs investigators, andl was also in charge of the inspections unit. I conduct inspection for the Police Department. Mr. Milian: And when you went to -- when you -- go ahead. Commander Perez: Then -- there are internal inspections. Mr. Milian: When you went to Internal Affairs, would you tell the Commissioners what was your rank? Commander Perez: I was a sergeant. Mr. Milian: And did eventually you get promoted to other positions? Commander Perez: Yes, sir. Mr. Milian: And would you tell the Commissioners what those positions were? Commander Perez: Sir, I was promoted to lieutenant, andl was a deputy commander for the communications section. Mr. Milian: Now did there come a time when you assumed a commander position that you currently are thinking that you still hold? Commander Perez: Yes, sir. Back in I believe December 2009. Mr. Milian: Okay. And would you tell us who the chief of Police was at that time? Commander Perez: Chief Exposito. Mr. Milian: And where were you assigned as a commander of the City ofMiami Police Department? Commander Perez: Little Havana, sir. City ofMiami Page 171 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: And what were your duties and responsibilities as a commander in Little Havana? Commander Perez: Sir, basically coordinate all police activities in the area. Our mission is to reduce crime and make sure we reduce crimes. Make sure we -- make sure that we respond to all calls for service. Make sure that we conduct investigations. Make sure that we keep the community safe. Mr. Milian: Did you have operational administrative responsibilities commensurate with somebody in leadership position -- Commander Perez: Yes, sir. Mr. Milian: -- responsible for completing the mission of that particular unit as well as supervising that personnel? Commander Perez: Yes, sir. We would also do like a -- the Flagami neighborhood, do a lot of things with the community. We do community meetings. We would also answer all their complaints from the residents, from the Commissioners, from everybody. Mr. Milian: Let me ask you this, commander. During the time that you have been in law enforcement, have you been supervised by the law enforcement personnel? Commander Perez: Yes, sir. Mr. Milian: Have you had the opportunity to personally supervise in a leadership position? Commander Perez: Yes, sir. Mr. Milian: During all that time that you've been with the City ofMiami Police Department, has it ever been acceptable to disregard an order from a superior? Commander Perez: No, sir. Mr. Milian: Have you ever deemed it acceptable to have a subordinate disregard an order that was given to you? Commander Perez: No, sir. Mr. Milian: Are you familiar with the term of insubordination? Commander Perez: Yes, sir. Mr. Milian: Disregarding a lawful order coming from a supervisor would constitute insubordination in your opinion? Commander Perez: Yes, sir. Mr. Milian: Have you ever heard any contrary edict, policy, procedure, or commandment from the City ofMiami Police Department that allows you to disregard an order, lawful order, reasonable order that is given to you by a supervisor? Commander Perez: No, sir. Mr. Milian: Okay. Now tell us until when did you hold this position of commander in the Little Havana office. City ofMiami Page 172 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commander Perez: I received it -- actually, I was -- I believe I was called by an officer. He told me, !ley, are you aware you're no longer the commander here? "Andl said, what. I didn't know. Mr. Milian: Did anybody in the chain of command call you in for any kind of a counseling session? Commander Perez: No. I believe it was an e-mail that was sent to everybody in the Department, even -- they say law enforcement, but also civilians, everybody that has access to a computer. Mr. Milian: Now earlier you told the Commissioners that you had been a sergeant in Internal Affairs. Is that correct? Commander Perez: Yes, sir. Mr. Milian: Internal Affairs conducts investigations of misconduct, administrative violations, et cetera, of law enforcement personnel in the Department, correct? Commander Perez: Yes, sir. Mr. Milian: When an officer is placed under investigation, is the officer afforded an opportunity to be placed on notice that in fact he is under investigation? Commander Perez: Yes, sir. Mr. Milian: Were you ever afforded an opportunity or given notification or given any documentation to say, commander, you're relieved of duties pursuant to an Internal Affairs investigation or a disciplinary action? Commander Perez: No, never. Mr. Milian: To this day, as you appear before this Board, this Commission, have you ever been afforded that opportunity by the administration of ChiefExposito? Commander Perez: No, sir. Mr. Milian: So would it be correct to say it's a mystery to you why you were stripped of your duties, responsibilities, and administrative duties with the City ofMiami Police Department? Commander Perez: Yes, sir. Mr. Milian: Did you consider that a demotion? Commander Perez: Yes. It is a demotion. Mr. Milian: And would you tell the Commissioners why you consider that a demotion? Commander Perez: Sir, I was basically -- none of the rules or traditions that we always followed were followed I mean, I find out was stripped basically, rendered powerless and sent -- you know, by an e-mail that was sent to the whole Police Department. Two days later, I -- back then the acting major was Commander Jones tells me didl receive an e-mail saying that was to report to a north station on administrative duties, and it was the same thing, just to be assigned to the station and just go out on lunch. If you want the e-mail, I got it here. I can show you. Mr. Milian: No. I believe you. But the question that want to ask you is this, given your City ofMiami Page 173 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 experience and your background in Internal Affairs investigation, you are familiar with the Law Enforcement Officers'Bill ofRights, correct? Commander Perez: Yes, sir. Mr. Milian: And the Law Enforcement Officers'Bill ofRights is a requirement that you and every Internal Affairs investigator and every Police Department have to abide by in the state of Florida, correct? Commander Perez: Yes, sir. Mr. Milian: It affords each and every individual subject officer certain rights under Florida law? Commander Perez: Sure, sir. Yes. Mr. Milian: And in fact, if those rights are violated, not only can the officer get his job back or circumvent any discipline, but in fact the Department can become liable for having violated those rules of Florida Statute 112? Commander Perez: Yes, sir. As a general rule, most IA investigations by the state of Florida got to be finished within 180 days. There's exceptions: Military leave, medical leave, exigent circumstances, but basically, yes. Mr. Milian: Okay. In this particular case, would you tell the Commissioners, have you ever received any notification under Florida Statute 112 that you were under any kind of investigation? Commander Perez: No, sir. Mr. Milian: So in effect, would it be correct to say that in holding the rank of police commander that you have been rendered ineffective or incapable of performing your job duties as a police officer? Commander Perez: I'm a powerless police commander. I have no power at all. I can -- I don't even supervise one person. Mr. Milian: And given the directives that you received through the chain of command, was it your position or did you understand that as a matter fact that whether there was a crisis or an emergency situation, you were effectively relieved of any duties, responsibilities that could have been essential in assisting the citizen s of the City ofMiami? Commander Perez: Yes, sir. Even though I'm a certified police in the state of Florida by the chief of Police, I can no longer do my duties. Mr. Milian: Now let me ask you this question. Typically in Internal Affairs cases when an officer is placed under investigation, he's not only given notification, but he's also -- depending upon the nature of the investigation, he may also be stripped of his badge, his credentials, his firearm if it's department issued. Did any of that occur in your particular circumstance? Commander Perez: No, sir. Mr. Milian: So as you stand here testing before this Commission today, it remains a mystery to you why you were stripped of your duties and responsibilities? City ofMiami Page 174 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commander Perez: Yes, sir. Mr. Milian: Okay. Would you tell the Commissioners how you felt, given the administrative action that was taken by the chief against you? Commander Perez: It was terrible. I hope to God nobody has to go through what we've been going through. From one day to the other, from being a commander being in charge of an area, meetings with officers out there fighting crimes, coming out with strategies, the next day you sitting in an office doing absolutely nothing. You know, I mean, nobody talks to you. I was asked at the north station by many officers ifI was relieved of duty. I mean, it's just not customary to have a commander basically locked up in an office doing nothing. Mr. Milian: Now, commander, let me ask you this. I mean, obviously with 20 years, you must draw a significant salary from the City ofMiami. Commander Perez: Yes, sir. Mr. Milian: And is it your testimony that even though you were drawing that salary because of the directive of the chief of Police, you were not able to work for the citizens of the City of Miami? Commander Perez: Yes, sir. Mr. Milian: Now one question that I really wanted to ask you is, you know, 20 years in the Department, two decades, you've come in contact with a lot of officers over that time, haven't you? Commander Perez: Yes, sir. Mr. Milian: Like Chief Brown and Commander Roque. You have had opportunity and occasion to interact with fellow police officers. Commander Perez: Yes, sir. Mr. Milian: Would you describe law enforcement work as paramilitary organization? Commander Perez: Yes, sir, it is a paramilitary organization. Mr. Milian: Subject to disciplinary matters? Commander Perez: Yes, sir. Mr. Milian: Subject to a certain amount of esprit de corps? Commander Perez: Yes, sir. Mr. Milian: Correct? Certain issues come up with morale, correct? Commander Perez: Yes, sir. Mr. Milian: And would you give your opinion to the Commission based on your training and experience of what is the reaction of the law enforcement community, your agency that you've been worked for for 20 years, when a law enforcement officer is all of a sudden stripped of all duties and responsibilities and relegated to an office. City ofMiami Page 175 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commander Perez: Sir, I've been called by many officers, especially the work -- the officers that were assigned to me in Little Havana. They wanted to know what happened to me, ifI was being relieved of duty, ifI was -- what happened to me. Andl couldn't tell them what had happened to me. I just told them that was transferred to north. And I just didn't want to tell them too much. I was embarrassed. Mr. Milian: In your opinion, is it conducive through the discipline and esprit de corps and the high morale of a Police Department when this type of action is taken in the darkness, in anonymity, against a member of the law enforcement community? Commander Perez: No, sir. Mr. Milian: All right. In the time that you were in Internal Affairs, when you were investigating an officer who had possibly done something administrative or in any other way incorrect or against department policies, were those officers put on notification when they were under investigation? Commander Perez: Sir, yes. Mr. Milian: And was that part of guarantees of due process that are afforded to a law enforcement member under the laws of the state ofFlorida? Commander Perez: Yes, sir. Mr. Milian: Is there anything else you would like to tell the Commission? Commander Perez: Sir, there was always exceptions to any long-term investigations or any other cases that -- but as a general rule, yes, the officer had to be notified. Mr. Milian: Okay. As you stand here, when there was a criminal investigation and the officer was considered to have maybe conducted himself in any manner which was contrary to the laws of the state ofFlorida, that officer was stripped not only of his credentials and his badge, but he was also stripped of any firearms and specifically told that he could not act in the guise of a police officer. Commander Perez: Yes, sir. Mr. Milian: Is that correct? In your particular case, you were never even told that, were you? Commander Perez: No. Mr. Milian: You were simply relegated to an office and told to do nothing? Commander Perez: Yes, sir. Mr. Milian: Thank you very much. No further questions. Commander Perez: Thank you. Chair Gort: Thank you. Mr. Chavez: You still hold the same rank and same benefits that you had on August 5, correct? Commander Perez: Sir, I hold the same rank. I don't hold the same benefits. I am basically in a room the whole day reading a book. City of Miami Page 176 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: With all due respect, I'm talking about financial benefits. Commander Perez: Oh, yes, sir. Financial benefits, yes. Mr. Chavez: Has your pay been compromised? Commander Perez: No. The benefits, no. Mr. Chavez: Okay. And you still hold the same rank, right? Commander Perez: I got the rank of powerless user, but yeah, I do hold the same rank. Mr. Chavez: Okay. Were you ordered by Chief Exposito to stay away from a certain establishment located on Northwest 7th Street and 36th Avenue back on December 2010? Commander Perez: Never, sir. Mr. Chavez: Now you're an investigator. You're in law enforcement, correct? Commander Perez: Yes. Mr. Chavez: Is it always standard practice to tell someone they're being investigated? Commander Perez: I told you it all depends what it is. It all depends what it is. Mr. Chavez: It all -- Commander Perez: It could be a lengthy investigation that could go on -- all depends. The Feds had investigations for you. IA cases with us. Ninety percent of IA cases with officers, we call them in and we let them know. Mr. Chavez: Do you know if Chapter 112, which I think you referred to as the officers' bill of right, actually applies to unclassified positions? Commander Perez: I don't know. Mr. Chavez: Thank you. Chair Gort: Okay. Thank you. Commissioner Suarez: Mr. Chairman, ifI may, I have a few questions. Chair Gort: Yes. Commissioner Suarez: As I'm hearing some of the testimony, I'm starting to see that demotions kind of fall into two categories, and the counsel for the defense continues to harp on salary and classification. And this is a question for the City Manager. Does the Department of Employee Relations or is it chief of Police that can actually change someone's salary? Mr. Martinez: The department of -- the HR (Human Relations) Department will look at the pay scale and depending on the range, they would receive a pay cut, if appropriate. Commissioner Suarez: Does the Department of Employee Relations or does the chief of Police determine the classification of the officer? City of Miami Page 177 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Well, if he's going to be rolled back to lieutenant, the chief determines that. Commissioner Suarez: But who actually makes that adjustment? Mr. Martinez: The HR Department. Commissioner Suarez: So he can -- his -- from what I'm understanding, his power is related to his -- the duties and responsibilities of the officers and not necessarily the salary and classification of the officer? Mr. Martinez: Correct. Chair Gort: Okay. Yes, sir. Vice Chair Carollo: Could you restate that? Yeah, I want to make sure that I have clarity in this. Commissioner Suarez: My understanding is that the salary and classification of a demotion -- in other words, where the salary's adjusted and the classification is adjusted, that is done by Employee Relations, according to what the City Manager just said. Is that correct? Mr. Martinez: Correct. Commissioner Suarez: Okay. So in essence, the only part of a itemotion'that could be effectuated by the chief of Police is relative to the person's responsibilities. Is that correct or is that incorrect? Mr. Martinez: Correct. The responsibilities were taken away from -- Commissioner Suarez: Right. Mr. Martinez: -- the employees. Commissioner Suarez: And the reason why I'm asking is because the defense counsel continues to harp on the fact that the salaries remain constant and that the classification remain constant. But it doesn't appear that the chief of Police has the authority or the ability to change those classifications or change that salary. Mr. Martinez: Correct, he doesn't. Vice Chair Carollo: Hold on. I think disagree, because if the police -- so what happens if the police chief would have demoted him to lieutenant? Mr. Martinez: Right. If the demotion -- Vice Chair Carollo: Or back to their civil service. I'm sorry, captain or -- Mr. Martinez: If the demotion had been approved -- Vice Chair Carollo: Uh-huh. Mr. Martinez: -- and then to another classification, the HR Department would have looked at the salary range that they're in as it commensurates with that position and make the adjustment as necessary. Vice Chair Carollo: And make the adjustment. But since they were not demoted, she didn't look City of Miami Page 178 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 at the classification and make that adjustment. Chair Gort: Okay. Commissioner Suarez: And who could ultimately approve the demotions? Mr. Martinez: I approve the demotions. Commissioner Suarez: Thank you. Mr. Martinez: Which I had -- Vice Chair Carollo: Right. Mr. Martinez: -- asked to hold off. Vice Chair Carollo: And since you did not approve them, the demotions didn't occur, and then HR didn't reduce the salaries and didn't reduce the classes. Mr. Martinez: That is correct. Vice Chair Carollo: That's correct. Commissioner Suarez: Now what -- Vice Chair Carollo: He just said it. Commissioner Suarez: What I'm getting at is that the actual salary and classification, which has been harped on as to define what a demotion is, that can only be done by the Employee Relations Department with the authority of the Manager. Is that correct? Mr. Martinez: Absolutely. Vice Chair Carollo: Right. And she didn't have the authority of the Manager and, therefore, she didn't do it. Commissioner Suarez: Right. Chair Gort: Okay. Commissioner Suarez: And so the only part that the chief controls in that particular case was the authority and the responsibilities of the police officer. Chair Gort: I think the question is, you have a position that is being paid X"salary, but it's not being performed in that position. Commissioner Suarez: So what I'm saying is, in effect, if he was told not to demote them and he took away their responsibilities, he did the only thing that he was empowered to do to demote them. That's what I'm saying. Chair Gort: Okay. Commissioner Suarez: Because he wasn't -- he didn't have the authority to do it on the salary and classification end because he was told -- he was stopped by the City Manager. So the Employee Relations Department listened to the City Manager; the chief of Police did not. City of Miami Page 179 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: Exactly. Chair Gort: Yes, sir. Commissioner Sarnoff.. Have you contacted the new chief and asked Chief Orosa why you've not been redeployed? Commander Perez: No, sir. I haven't been -- I haven't been to work this week. I've been -- Commissioner Sarnoff.. How long have you been off? Commander Perez: I've been -- Commissioner Sarnoff.. How long have you taken leave? Commander Perez: I took -- I have scheduled vacation. I also took -- my father was sick. I was taking care of him. Andl also went to work a few days at the north station. Commissioner Sarnoff.. So if you left us with the impression that you've just been sitting at a desk doing nothing, what you've really been doing is vacationing. Commander Perez: No, sir. I had some scheduled vacation that I took. Then my father was sick, andl was taking care of him for a few days. Some of the days thatl went to work -- Commissioner Sarnoff.. Well, I didn't mean to say vacationing. You weren't at work. Commander Perez: I have not been at work all the time. Commissioner Sarnoff.. Right. And actually, the last -- was it Roque? I was certainly left under the impression he was sitting in a corner with a dunce hat on just collecting his salary, but apparently he was out a little over 60 days -- Commander Perez: I don't know about that, sir. Commissioner Sarnoff.. But you haven't contacted the new chief to ask him what your new assignment would be? Commander Perez: No, sir. Commissioner Sarnoff.. You heard commander -- excuse me. You heard the Assistant Chief Brown has been reassigned? Commander Perez: I found out about it today. Commissioner Sarnoff.. Okay. So as soon as you heard about this -- Commander Perez: No. Sorry, sir. Tuesday, when I came to a staff meeting. My apologies. Commissioner Sarnoff.. Is that the first time you went back? Commander Perez: No, no. I've been back and forth. Commissioner Sarnoff.. Like intermittently? City of Miami Page 180 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commander Perez: Yes, sir. Commissioner Sarnoff. Okay. Chair Gort: Yes, ma'am. Commissioner Spence -Jones: Some -- my questions are basically the same. How long have you known ChiefExposito? Commander Perez: Ma'am, for many, many years. Commissioner Spence -Jones: And did he -- was he the one that promoted you? Commander Perez: Yes, ma'am. Commissioner Spence -Jones: Okay. So how did you learn of the assignment change? Commander Perez: Ma'am, I was told by Commander Jones, then I received an e-mail telling me to report to the north station. Commissioner Spence -Jones: Okay. So after you got that information, did you take it anywhere else? Did you take it to the Manager or Mayor's office or anywhere else? Commander Perez: No, ma'am. Commissioner Spence -Jones: So you never mentioned -- you never made a complaint to the Manager to let them know or -- you just accepted it? Commander Perez: No. I believe I called the Manager one time and told him that, you know, I wasn't given any -- no explanation. Commissioner Spence -Jones: Okay. So do you feel that this was retaliation? Commander Perez: I believe so. Commissioner Spence -Jones: Okay. Why? Okay. Roy said it was the budget. The other person after that said it was -- what was the other item? Vice Chair Carollo: He was friends with Cabrera? Commissioner Spence -Jones: Oh, friends with Cabrera. Commander Perez: Yes, I'm also friends with Cabrera. Commissioner Spence -Jones: Oh, so two friends of Cabrera and the budget. That's how we got here. Okay. So you feel like that was the heartbeat of the issue? Commander Perez: Possibly. Commissioner Spence -Jones: Is retaliation. All right. And then just, you know, in closing, you used the word Humiliation, 'br you -- I think you might have meant you felt humiliated or something along that line. Why did you -- 'cause Commissioner Sarnoff just mentioned, well, you wasn't really at work. You were -- Commander Perez: No. I took some days off. I had some scheduled vacation. I also went to City of Miami Page 181 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 work some days, and it's just uncomfortable; the officers come around. They ask you, !Iey, what are you doing here? What are you up to? What are you in charge of? "Then later they find out through the grapevine that we basically powerless, so -- Commissioner Spence -Jones: Okay. I just -- just in closing, are there any other City employees that have to come up? You have another City employee? Mr. Milian: Yes, ma'am. Commissioner Spence -Jones: Okay. All right, I'm done. Commissioner Suarez: Mr. Chairman, ifI may? Chair Gort: Yes. Commissioner Suarez: And Madam Attorney, please correct me if I'm wrong or guide me here. But I believe you filed the whistle -blower complaint? Commander Perez: Yes, sir. Commissioner Suarez: Is it appropriate or is it a public document that can be discussed and can be questioned upon? Ms. Bru: It's up to him to decide how much he wants to talk about it. But I would ask you to not bring that into this hearing at this time. I think that it's not necessary for you to decide the issues that are before you, and it's not in the best interest of the City to get into issues that may result in some future litigation. Commissioner Suarez: I'll take your advice. I just think that it goes to the heart of the question that Commissioner Spence -Jones asked, and so I just didn't know whether that was worth fleshing out or not, which is whether or not he felt the demotion was retaliatory and why. That's the only reason why I brought it up. Commissioner Spence -Jones: So he can't talk about it? Ms. Bru: You know, I think -- Commissioner Spence -Jones: I mean, I'm -- this the first time I'm hearing. So did all the other two file whistle blowers or just him? Ms. Bru: I -- I'm not -- I don't know. I don't know who's filed a whistle blower. Commissioner Spence -Jones: Does any of the Commissioners know? Is there any other whistle -- 2 Commissioner Sarnoff. I don't know. I really don't know. Vice Chair Carollo: Sorry, what's the question? Commissioner Sarnoff. She's asking -- Chair Gort: If there's any other complaints filed -- Commissioner Spence -Jones: Any other whistle -blower complaints? City of Miami Page 182 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: I think that they testified that there have been actions -- I'm not very technical, as you can see. I think they did testes on the record that they have taken legal action as a result of their demotions. Commissioner Spence -Jones: So all three of them have whistle -blower lawsuits? Mr. Milian: I believe, unless I stand corrected by somebody that there has been steps taken by all three members to address this matter in a separate forum. Commissioner Spence -Jones: Okay. Counsel, you were going to say something? Mr. Chavez: They're not lawsuits, ma'am. Commissioner Spence -Jones: Okay. Mr. Chavez: They're just complaints. Commissioner Spence -Jones: Okay. Thank you for the clarification. Mr. Chavez: The former would be a bit more expensive. Commissioner Spence -Jones: Okay. As I say, wow. Chair Gort: Yes, sir. Mr. Milian: One question. Commander, were you ever threatened by the chief? Commander Perez: Sir, I believe that's part of the whistle blower. Mr. Milian: Okay. I don't want you to get into the facts of that matter. Mr. Chavez: Mr. Chairman, just one last question. I believe you describe the Police Department as a paramilitary organization, is that correct? Commander Perez: Yes, sir. Mr. Chavez: In the military, do you question the change of duties? Commander Perez: Excuse me? Mr. Chavez: In the military or in a paramilitary organization, are changes of duties questioned? Commander Perez: Sir, I'm a retired Army officer in the military. They don't transfer you and take away your powers for no reason. Mr. Chavez: Okay. Andl understand that. But when they're trans -- Commander Perez: Without going to the court marshal first. Mr. Chavez: When you're transferred from one battalion to another, from one position to another -- Commander Perez: When you transfer from one battalion to another, you're given duties and responsibilities comparable to what you had. City of Miami Page 183 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: And do you question the transfer in that regard? Commander Perez: No. I never questioned this transfer either, sir. Mr. Chavez: Thank you for your time, sir. Commander Perez: Thank you. Chair Gort: Yes, sir. Commissioner Spence -Jones: I -- sorry. Chair Gort: Yes, ma'am. Commissioner Spence -Jones: No. I -- so you say you never -- I'm sorry, sir. You say you never Unidentified Speaker: Me? Commissioner Spence -Jones: No, no. So you said you never questioned the transfer? Commander Perez: No, ma'am. Commissioner Spence -Jones: So you didn't have an issue with it? Mr. Milian: No. Commander Perez: Yes, I had issues, ma'am. But I mean -- am I going to go and ask the chief? Mr. Milian: Commissioner, I can clam that. May I clarify something? Commissioner Spence -Jones: I'm lost. Mr. Milian: Commander, were you ever transferred? Were you given orders to transfer you to another command, another position commensurate with your experience and rank? Commander Perez: No, sir. Mr. Milian: Okay. Commissioner Spence -Jones: Okay. Mr. Chavez: In the military, the question was I think was directed at -- his military service. When you are transferred from one change of duty station to another, if you're a battalion commander, you go as a battalion commander unless you're promoted. You're given actual duties. Commissioner Spence -Jones: Okay. Chair Gort: Thank you. Commissioner Spence -Jones: Thank you. Chair Gort: Anyone else? City of Miami Page 184 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Yes, Mr. Chairman. I would like to call Interim ChiefManuel Orosa at this time. Chief I'm going to address you as chief because you're holding that position at this time. Would you please state your full name for the record; spell your last name. Manuel Orosa (Interim Chief of Police): Manuel Orosa, O-R-O-S-A. Mr. Milian: And would you tell the Commissioners what you do for a living? Interim Chief Orosa: I'm a major in the Police Department. Mr. Milian: And how long have you been employed in law enforcement? Interim Chief Orosa: Thirty-one years. Mr. Milian: And during the course of that time, have you held different duty assignments as a law enforcement officer? Interim Chief Orosa: Yes. Basically, I've been promoted up the ranks until my current assignment now. I've been -- I worked in basically all the sections of the Police Department, and I've commanded in the three divisions of the Police Department as well. Mr. Milian: And would you tell us what those three divisions are? Interim Chief Orosa: I was a major in the patrol section. I was a major in the criminal investigation section. And now I'm a major in the administration division. Mr. Milian: Okay. And you had been asked to step into the role of interim chief as of the suspension of ChiefExposito? Interim Chief Orosa: Correct. Mr. Milian: Now in 31 years in law enforcement, have you ever seen either in your department, the City ofMiami Police Department, or in any other law enforcement department, to have an officer holding a rank of commander or assistant chief be stripped of his duties and responsibilities but allowed to remain in effect in what's supposed to be the same position without the ability to carry out his duties as a law enforcement officer? Interim Chief Orosa: No, I haven't. Mr. Milian: And would it be accurate to say that these three cases that we have been discussing today here with the Commission are unique in and of themselves because of the way the actions, the demotions have been handled against these three members of the Miami Police Department? Interim Chief Orosa: Yes, that's a fair characterization. Mr. Milian: Now, chief we've been talking a little bit -- andl know you were present -- you know, about the due process issues here on how to handle disciplinary matters. Would you agree with the testimony that you've heard that before an officer is disciplined, before disciplinary or administrative action is taken to an officer, an officer under the Law Enforcement Officers' Bill of Rights, the collective bargaining agreement, has a right to be notified and have his due process rights respected? Interim Chief Orosa: Correct. And face his accusers, too, in what they have to say. Mr. Milian: Well, I'd like to ask -- there's a question that came up a little while ago. There was City ofMiami Page 185 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 an issue about whether the law enforcement officer's bill of rights under Florida statutes applies to other individuals in the Department. And based on your knowledge and your experience, would you tell us who does the Law Enforcement Officers' Bill of Rights apply to? Interim Chief Orosa: Everyone except the head of the organization, which in this case is the chief of Police. Mr. Milian: I see. And would this mean that in your estimation, in your training, in your experience in fulfilling your leadership roles, that you were afford any member under your command, your chain of command those same due process rights? Interim Chief Orosa: Yes, I would. I -- it's basically part of the thread of our organization that if somebody's caught doing something wrong, basically they're called in and told what they did and given discipline, and then basically they have a due process to try to reverse that discipline. Mr. Milian: Okay. Would that include as well issues regarding pre -disciplinary conferences? And what I'm referring, chief is in your experience that before a law enforcement organization, one that is covered under the law enforcement bill of rights in the state of Florida, issues discipline, it must afford an officer an opportunity to show cause why that discipline should not be inflicted upon them? Interim Chief Orosa: Yes. That's basically part of facing your accusers and having knowledge of what your accusers are saying about you. Mr. Milian: Now, chief one important thing talking about the disciplinary issues that come up in law enforcement, they are somewhat unique to the arena of civil service and issues regarding law enforcement. Would you agree with that? Interim Chief Orosa: Yes. Mr. Milian: Would you agree that there's issues of discipline that must be enforced in the organization? Interim Chief Orosa: Of course. If not, if everybody does what they want to do, we lose control of the organization. Mr. Milian: Would you agree that in your experience as well as the training and the policies and procedures that you've been educated on with the City ofMiami Police Department, all lawful and reasonable orders must be obeyed? Interim Chief Orosa: Yes. Mr. Milian: And could -- Interim Chief Orosa: The only orders that you are not supposed to obey are the ones that are illegal. Mr. Milian: Now having stated that, if your experience as a law enforcement officer, why is it important, would you tell the Commissioners, that throughout the ranks, from the rank of chief down to rookie patrolman, is it -- why is it important that these orders be followed when they come from a lawful, reasonable authority figure? Interim Chief Orosa: Basically, the best scenario is when you have an emergency or a critical incident, you need to take care of the situation right away to save lives, to help people. You cannot have people questioning your authority as to, oh, I don't want to do this or I don't want to City ofMiami Page 186 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 do that. You have to do what you're told in order to protect lives. Mr. Milian: Chief what message would it send to officers on the BEAT, in the patrol in the Department if in a crisis situation, a hostage situation, a perimeter that has been set up, and every individual officer is allowed to circumvent or ignore orders from a superior officer in a crisis? Interim Chief Orosa: Basically, we might as well close the Police Department and go home because nobody's going to be doing their job, and the citizens are not going to be safe. Mr. Milian: In your opinion, what kind of message does it send through the rank and file if an officer, regardless of rank, is allowed to circumvent, avoid, or ignore lawful orders that are issued to him? Interim Chief Orosa: Everybody can do it. Mr. Milian: Would you agree with the statement that in your opinion, law enforcement officers in a supervisory capacity have to lead by example? Interim Chief Orosa: Correct, yes. Mr. Milian: With -- go ahead. Interim Chief Orosa: No. I agree with you. Mr. Milian: And would you say agree that an officer, regardless of rank, has to obey lawful authority, whether it comes from a civilian source or whether it comes from a uniformed officer that is ahead of him or senior to him in this chain of command? Interim Chief Orosa: Yes. That's basically part and parcel the way this nation was created. We can't -- for example, the President of the United States, when he gives the military an order, you can't have the generals go against the President. If not, we wouldn't have a country. Mr. Milian: Would you also agree that, in fact, lawful orders have to obeyed not only in the letter of the law but also in the spirit of the law? Interim Chief Orosa: Yes. Mr. Milian: I mean, in other words, would you find it acceptable that you told an officer to patrol a certain section and basically what he did was pretend to patrol that certain section and ignored your lawful orders? Interim Chief Orosa: No. That's a -- that's not acceptable. Mr. Milian: In your experience with the City ofMiami Police Department, have you come across cases where officers, and throughout the law enforcement community, have been disciplined up and including termination for being insubordinate and disobeying a lawful orders that were issued to them? Interim Chief Orosa: Yes. It's -- I've seen it in the history of the Police Department. Yes. Mr. Milian: And in your opinion, is that a proportionate punishment when a direct order from a lawful supervisor is actually disobeyed? Interim Chief Orosa: You basically have to take all the facts into account. And if the issue's so City ofMiami Page 187 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 egregious that merits termination, then yes, you should terminate. Mr. Milian: Do you believe that given your years in law enforcement, when an officer in a high-ranking position takes an insubordinate action, it has treble damages, it has multiple damages because it becomes a standard that other officers believe they can follow in the Department? Interim Chief Orosa: Yes, sir, you're right. Mr. Milian: Now let me ask you about this particular situation. You have heard three officers, two commanders, approximately with 85 years of experience in law enforcement. Given your experience, given your position as interim chief did you see any cause for the actions that were taken of stripping them of both their operational and administrative responsibilities for the Department? Interim Chief Orosa: No, I haven't. If it's basically an issue of we don't get along, then it's up to the head of the agency to bring him in and see how they can get along and give them an opportunity. And then if it doesn't work out, then at the last recourse, then you're going to have to demote them. Mr. Milian: Is it in your opinion a solid, respected, accepted method of law enforcement leadership to provide counseling to any and all officers in a subordinate position when there is an issue about their job performance? Interim Chief Orosa: You have to, because if the individual is not aware that they're making mistakes, it's unfair to them. So you have to reach out to them and basically give them counseling and basically tell them, hey, you're screwing up. And this is why and this is what I want you to do. Mr. Milian: Now law enforcement promotes like in the military. Becoming a paramilitary organization based on training, experience, education, and credentials. Would that be right? Interim Chief Orosa: Yes, sir. Mr. Milian: Okay. Would you have an opinion, based on your training and your years in law enforcement, on how it appears to a law enforcement officer in an organization when people are demoted on a particular whim and in disregard of orders that are issued by lawful civilian authority? Interim Chief Orosa: Basically, it sets a bad example. It sets an example that if he did it, I can do it and nothing's going to happen to me, and it'll trickle down the ranks and it eventually will affect morale. Mr. Milian: Do you think that morale is a factor that always should be considered when law enforcement leadership takes actions for the rank and file? Interim Chief Orosa: Of course. It's one of the most important issues, morale in any organization, because if morale is low, productivity is going to be low and you want productivity to be high in order to provide good services to our citizens. Mr. Milian: Now in your role as an acting interim chief I'd like you to tell the Commissioners some of the steps that you have taken or felt necessary and compelled to take acting as the interim chief to preserve the integrity of certain records and files and investigative documents of the City ofMiami Police Department. If you could expand on that. City ofMiami Page 188 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Interim Chief Orosa: When the City Manager called me at 8: 30 or eight thirty -something in the morning and basically saidl would like you to be interim andl want you to be the caretaker of the Police Department until the resolution of the ChiefExposito is determined by the Commission, I said, sure, I'll take care of it. And basically, he said, but I don't want you to make any changes. I don't want you to disrupt the organization. And then I said, Mr. Manager, I need to make one change. Andl went through him why I needed to make the change. And he said, Okay, make that change. "And basically, I met with the staff of the chief in his office and laid out why I wasn't doing any changes and stuff like that. Then I called for a staff meeting at 2 o'clock, which I also laid out everything. I explained to the staff what the Manager had told me. I'm just a caretaker here until a determination of the chief's job is established. If he comes back, great. If he doesn't come back, then I presume I'll be the interim for a little bit longer until the Manager selects a permanent candidate, which that's what he told me were his wishes from the list of applicants. But I did tell the staff that I was making one change. I was assigning Internal Affairs under the division of administration under Chief Roy Brown, and thatl was transferring Major Alvarez and Commander Rodriguez out ofInternal Affairs, and was sending Major Alvarez to a vacant major slot in Central district. He's in charge of all the patrolmen that patrol Central district. He just took three days off. That's beyond my control. And Commander Rodriguez is in charge of the criminal investigation section under a major. And basically, that's where those two gentlemen were transferred to. I did not remove any assignments. I just changed their assignments and duties and responsibilities. They are still whole. Mr. Milian: When you took those actions as interim chief did you order any of these gentlemen that you have mentioned today, did you order them that they had no powers as a law enforcement officer? Interim Chief Orosa: No. They still got all their powers, duties, and responsibilities. All did was laterally transfer them from one position to another position. They're still in command of policemen and sergeants and lieutenants, et cetera. Chair Gort: Commissioner Suarez. Commissioner Suarez: Let me interrupt and ask a question. Mr. Milian: I see Commissioner Suarez is asking. Commissioner Suarez: Please. Mr. Milian: Yes, sir. Interim Chief Orosa: Yes, sir. Commissioner Suarez: I have a question for you. My question is, regardless of whether the transfers that you made can be viewed as demotions or not, were they done with the consent of the City Manager? Interim Chief Orosa: Yes, sir. Mr. Milian: Now once you took those positions, these were considered, in your estimation as a leader of the Department -- the acting leader of the Department, as a transfer, correct? Interim Chief Orosa: Yes, sir. Mr. Milian: Would it make any monetary, operational, administrative sense to simply strip somebody of their operational administrative duties and leave them in uniform in the same position that they were holding? City of Miami Page 189 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Interim Chief Orosa: No. Mr. Milian: Now there's been talk about rollback here today. And in 31 years, I assume -- and I'm only assuming. You correct me if I'm wrong -- that there must have been some issues of rollbacks in the past. Are you familiar with the term Pollback? Interim Chief Orosa: Yes. Mr. Milian: Now in a rollback, would it be correct to say -- just to get to the punch line -- that individuals who are reverted back to their civil service classification are assigned to positions where they can continue to earn their salary and work for their money and fulfill their duties as law enforcement officers. Is that correct? Interim Chief Orosa: Correct. Mr. Milian: And you're familiar with some of the rollbacks. Andl think one of our Commissioners was asking about the exact number of rollbacks. Are you familiar with the tenure of Chief Timoney? Interim Chief Orosa: Yes. Mr. Milian: Do you have independent recollection and specific knowledge of rollbacks that took place under the tenure of Chief Timoney? Interim Chief Orosa: Yes. Mr. Milian: And would you tell the Commissioners what that knowledge and what that recollection is? Interim Chief Orosa: He had zero rollbacks. What happened was that when he took over the Police Department, Mayor Diaz, apparently to save money, decided to eliminate the health insurance for staff. And let me explain a little bit more. Previous to Mayor Diaz, if you were in staff for three years or longer and retired from staff the City would pick up your health insurance payments for your life -- for the rest of your life. Mayor Diaz eliminated that. When that came out that that was going to be eliminated, the higher echelon of the Police Department, mainly some majors and some chiefs, decided to retire and not lose that benefit of health insurance for life. So technically, no, he did not roll back anybody. Mr. Milian: Now I want to ask you something that has been raised by both the Commissioners and my opposing counsel, as well as myself, this issue about demotions. People who spend a lifetime in law enforcement and go up to the ranks, eventually at some point, either because of the time that they're in the insurance retirement programs, they retire, especially when they're high-ranking. Interim Chief Orosa: Correct. Mr. Milian: Would you venture to give us an opinion on how it looks when an officer who held a command position, commander, assistant chief goes on with his law enforcement career, applies for a chief position when it looks like he was stripped of all duties and responsibilities. Is this something that is beneficial or is this something that is detrimental to them as an individual and as a law enforcement professional? Interim Chief Orosa: I do not think any agency will hire that individual -- City of Miami Page 190 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Does that give the impression -- Interim Chief Orosa: -- because it leaves that cloud as to why you were stripped. And basically, I don't think any agency will even touch you. Mr. Chavez: Mr. Chairman. Chair Gort: Yes. Mr. Chavez: I would move to strike as speculative. It's speculation. Chair Gort: Strike as speculation. Mr. Milian: Well, Mr. Chairman, I asked this gentleman to speak after laying an extensive predicate based on his training and experience in the law enforcement community and based on his knowledge of what goes on in the law enforcement community. I'd ask that you accept the evidence and give it whatever collective and individual weight that you think is appropriate, because I think this gentleman -- Mr. Chavez: IfI may -- Mr. Milian: -- is easily quaked as an expert witness on law enforcement operations. Commissioner Suarez: Mr. Chairman. Mr. Chavez: If may? I don't -- Chair Gort: Yes. Excuse me. Commissioner Suarez: Yeah. He's giving an opinion on the basis of his expertise and that's a lot of the testimony that he's giving right now, so -- Mr. Chavez: Mr. Chairman, even if he is giving an opinion as an expert witness, they're not allowed to speculate as to -- he's not going to get into the state of mind of a person who's going to interview any potential candidate in another department, so he cannot test fy as to state of mind of an interviewer or perspective employer of the officers at issue, which is the inference that opposing counsel is attempting to draw. Chair Gort: Got you. Yes, sir. Mr. Milian: May I continue? Chair Gort: Yes. Different question. Mr. Milian: So, chief it is your opinion that -- or is it your opinion that to demote somebody from a command in leadership position by stripping them of their authority and responsibilities denigrates that person in the law enforcement community? Interim Chief Orosa: Yes, sir. Mr. Chavez: Object to the form. Use of the word denigrate. Mr. Milian: Well, does it make them look good to his fellow law enforcement officers? Interim Chief Orosa: Of course not. City of Miami Page 191 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Does it make him look good to potential employers? Interim Chief Orosa: Of course not. Mr. Milian: And you've been in a position to also do hiring and supervisory work. You've served in all three divisions, including personnel. Interim Chief Orosa: Well, not personnel. Personnel is under -- Mr. Milian: Administration. Interim Chief Orosa: -- Chief Roy Brown. Mr. Milian: Okay. But personnel is one of the areas that's under -- Interim Chief Orosa: Yeah. Mr. Milian: -- one of the administrative sections? Interim Chief Orosa: I've had contact with personnel matter issues as well. Mr. Milian: Okay. Chief is there anything else that you would like to add to the Commissioners at this time? Interim Chief Orosa: No, not really. Mr. Milian: One final question. Do you think it's acceptable for a chief of Police, whether he's appointed in an interim capacity or permanently, to defy the City Manager when he's given a lawful order? Mr. Chavez: Objection. I would object to that. That's an ultimate issue before these proceedings. Chair Gort: What do we have, a sidebar or what? Commissioner Suarez: Wait a second. It's an ultimate issue that he can -- Chair Gort: We having a sidebar or what? Commissioner Suarez: -- defy the orders of the City Manager? That's an ultimate issue? Mr. Chavez: The question -- absolutely. Insubordination is a charge against my client, and ultimately, he -- the question asked is -- asking this gentleman to make a decision or give an answer based on opinion on the ultimate issue offact before you and the remaining conditions. Commissioner Suarez: No. The ultimate issue offact before us is whether the actions taken constitute insubordination, not whether it is appropriate for a police officer or for a police chief to disobey the orders of the City Manager, which is what I believe your question was. Mr. Milian: Right. I'm not asking for the ultimate issue offact. And I agree -- Commissioner Suarez: Right. Mr. Milian: -- with my counsel that it's up to the Commission to make that factual City of Miami Page 192 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 determination. Mr. Chavez: Of course. Mr. Milian: I am simply asking that in his position and experience in law enforcement leadership, supervising, running a Police Department, is it acceptable for a chief of Police to defy the lawful orders of a City Manager, not this City Manager, but any City Manager. Mr. Chavez: Same objection. And Mr. Chairman -- Chair Gort: Okay. Mr. Milian: Well, I will stipulate for the following thing, and maybe this will clarify it, that I think we all agree that an illegal order never has to be followed. I think we can also agree that a legal order always has to be obeyed. Would that be your understanding, chief? Interim Chief Orosa: Yes, sir. Mr. Milian: Okay. One final question thatl wanted to get into. Commissioner Spence -Jones asked some questions about Internal Affairs matters. Andl know that there are limitations under Florida law regarding what can and cannot be publicly disclosed by the Police Department. Interim Chief Orosa: Yes. Mr. Milian: But are you aware of any Internal Affairs cases against the individuals who have tested here today? Interim Chief Orosa: Basically -- Mr. Milian: That you can discuss. I certainly don't want you to violate any rules or regulations or laws. Interim Chief Orosa: No. Basically, I called over the lieutenant that is in charge of Internal Affairs and a Commissioner asked a question why a lieutenant. That lieutenant used to be a major in charge of Internal Affairs before he got demoted under the current administration. So I put him back because he's one of the people that can understand the system over there. So I trusted him and put him there in that situation. And basically, I called him up and said, is there anything against these three individuals that we can talk about. And basically, he says, Commander Perez, nothing. Roque has an open case that more than likely is going to be inconclusive. And Chief Brown has an open case from the Timoney administration that the case file is missing. And when I said why, he said, 1' don't know. Let me call the lead investigator. "He called the lead investigator, and the lead investigator basically said this is an old case. It is our interpretation that Chief Brown's rights under 112 were violated and basically it's going to be inconclusive. I wrote it up as inconclusive. I turned it into my commander, and he said, Give it to me, but don't close it. "And that's the file that's missing. Mr. Milian: And who was that individual, if you know? Interim Chief Orosa: Excuse me? Mr. Milian: Who was the individual who requested that file? Interim Chief Orosa: Commander Melancon. Mr. Milian: I see. So could you test fy as an acting chief of Police of the City ofMiami that to City ofMiami Page 193 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 your knowledge, based on the testimony that you've heard, there is no administrative or disciplinary action that would justin, the demotions of these officers as you tested here today? Interim Chief Orosa: No, nothing contemplated. No, sir. Mr. Milian: Thank you. No further questions. I tender the witness for cross-examination. Chair Gort: Okay. Thank you. Mr. Chavez: Interim chief. Interim Chief Orosa: Yes, sir. Mr. Chavez: Who's Major Mario Garcia? Interim Chief Orosa: He is an individual what retired from the Police Department, and he is now in charge, I believe, of the port authority over at Everglades. Mr. Chavez: Port authority. Is that a form of law enforcement? Interim Chief Orosa: No. He's a security director of the port. Mr. Chavez: Okay. Was Major Mario Garcia rolled back by Timoney? Interim Chief Orosa: To who? Mr. Chavez: Was Major Mario Garcia rolled back by former Chief Timoney? Interim Chief Orosa: Yes. Mr. Chavez: So when you testified earlier today or earlier this evening that Timoney had no roll backs, you forgot about Officer Garcia? Interim Chief Orosa: Well, the -- when Timoney rolled him back, that was an issue that was already rolling down the pike under the Raul Martinez administration and, basically, it landed in Timoney's lap and he had no other alternative but to roll him back. Mr. Chavez: Who signed the rollback documents for Major Garcia? Interim Chief Orosa: Probably Chief Timoney. Mr. Chavez: So it's his rollback, correct? Interim Chief Orosa: Correct. Mr. Chavez: Now you indicated that law enforcement officers should lead by example. Would that apply to Roque? Interim Chief Orosa: Everyone. Mr. Chavez: Would that apply to Perez? Interim Chief Orosa: Everyone. Mr. Chavez: Would that apply to yourself? City of Miami Page 194 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Interim Chief Orosa: Everyone. Mr. Chavez: Now with regards to the investigation that was -- you just mentioned regarding Officer Brown, you said it was old. How old? Interim Chief Orosa: That was from the previous administration. Mr. Chavez: Had nothing to do with ChiefExposito, did it? Interim Chief Orosa: Correct. Mr. Chavez: Now when you received a call from the City Manager that, hey, I want you to be interim chief where were you? Interim Chief Orosa: Sitting in my office. Mr. Chavez: You were sitting in your office at approximately 8: 30 in the morning? Interim Chief Orosa: Yeah. Mr. Chavez: September 6? Interim Chief Orosa: Yeah, if that's the date. Yes. Mr. Chavez: When you go to work on a regular basis, let's say up until September 2, do -- what kind of uniform do you wear? Interim Chief Orosa: Either what I'm wearing now, short sleeves, or coat and tie. Mr. Chavez: The uniform you're wearing now is a Class A uniform, correct? Interim Chief Orosa: Correct. Mr. Chavez: Typically worn by a chief correct? Interim Chief Orosa: Correct. Mr. Chavez: How do you know to wear your Class A uniform that day when the call making you interim chief didn't come until 8: 30 that morning? Interim Chief Orosa: All my other uniforms were at the cleaners. Mr. Chavez: Convenient. Interim Chief Orosa: All I had was long sleeves. Mr. Chavez: Sounds like -- I'll refrain. Interim Chief Orosa: Okay. Mr. Chavez: Now have you ever been to a tobacco establishment located at Northwest 36th Avenue and 7th Street? Interim Chief Orosa: Once for a retirement party. City of Miami Page 195 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Now you made one reassignment, am I correct? Interim Chief Orosa: Well, technically, it's two, but it was one issue that I reassigned. Mr. Chavez: What reason did you give the City Manager for doing the reassignment? Interim Chief Orosa: For the last couple of weeks, since there was a speculation that the chief was going to be suspended, there was rumors going around the station that individuals from Internal Affairs were making copies and taking files out. That's one. There was also rumors that everybody that had applied for police chief that was a member of this organization had Internal Affairs cases opened on them. And for the mere fact that Internal Affairs is very important and to provide and maintain integrity in that unit, I needed to know by -- for myself, so I asked the Manager for the transfers. He approved. And put an individual there that can tell me the truth. Mr. Chavez: Now when you asked for the transfer from the City Manager, did you explain all that or you just said, I think it's good we go and take control of IA? Interim Chief Orosa: No. Basically, what said, I think IA is a little bit out of control. I need to shut it down and take control of it. Mr. Chavez: Did he inquire of anything further than it's out of control? Interim Chief Orosa: No. Mr. Chavez: He took your word for it? Interim Chief Orosa: Correct. Mr. Chavez: Now, ultimately, did he at any time ask you Go take a look at those files in IA? Interim Chief Orosa: Nope. Mr. Chavez: I tender the witness. Chair Gort: I'm sorry. What was that? Commissioner Sarnoff.. Chief. Interim Chief Orosa: Yes, sir. Chair Gort: Yes. Commissioner Sarnoff.. You have applied to be the permanent chief correct? Interim Chief Orosa: Yes, sir. Commissioner Sarnoff.. And when you -- should you get that job, you'll be putting people that are loyal to you around you, correct? Interim Chief Orosa: I will be putting competent, qualified people around me. Commissioner Sarnoff.. Would that be loyal to you? Interim Chief Orosa: It all depends. City of Miami Page 196 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. Would you put somebody unloyal [sic] to you? Interim Chief Orosa: If he's competent and qualified and can follow my orders and directions, I don't mind it. Commissioner Sarnoff. Okay. Then your requirement is not somebody that's loyal to you? Interim Chief Orosa: No. My requirements would be somebody that is competent and qualified first. Commissioner Sarnoff. Okay. And -- Interim Chief Orosa: First. Commissioner Sarnoff. Sony? Interim Chief Orosa: Competent and qualified first. Commissioner Sarnoff. Right. But would you also consider loyalty? Interim Chief Orosa: That would be a benefit afterwards. Commissioner Sarnoff. So competent -- what did you say -- competent, what? Chair Gort: Qualified. Interim Chief Orosa: Qualified. Commissioner Sarnoff. Qualified and then loyal? Interim Chief Orosa: Correct. Commissioner Sarnoff. And that's the order you'd put it in? Interim Chief Orosa: Yes. Commissioner Sarnoff. And those are decisions that you would make based on your own subjective determinations, correct? Interim Chief Orosa: No. That's my decisions based on history of knowing individuals for 31 years in the Police Department. Commissioner Sarnoff. Right. But subjective means it's your determination. You don't go to a computer and put a button that says competent and somebody spits out, right? Interim Chief Orosa: Well, no. I would do what previous administrations have done, that they basically take a copy -- or not take a copy, but look into their IA files to see if the individuals that you want to promote have good standing and are qualified and competent. Commissioner Sarnoff. Well, I'm sure you're going to go into this with some idea as to who you'd like, correct? Interim Chief Orosa: Correct. Commissioner Sarnoff. I'm sure you have your ten favorites. Like on your phone, do you have City of Miami Page 197 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 ten favorites? Interim Chief Orosa: No, not really. I'll determine that -- I've made it purposefully, A, I'm just a caretaker here. I have no idea if I'm going to be here past tomorrow, whether the chief gets his job back or not. And purposefully, I haven't even decided that. The only decision that I decided to do is the Internal Affairs decision. Commissioner Sarnoff. But you're in a unique position. You're in a unique position that you are the chief right now and you hope to be the permanent chief. Interim Chief Orosa: Hopefully. Commissioner Sarnoff. Okay. So in questioning you, what I'd like to learn is the kind of people you want around you, competent. What'd you say competent, something, and then loyal. Interim Chief Orosa: Qualified. Commissioner Sarnoff. Qualified, loyal. All right. And those are the people you want to surround your inner circle with, right? Interim Chief Orosa: Correct. Commissioner Sarnoff. What is your inner circle? Interim Chief Orosa: What is my -- Commissioner Sarnoff. What is considered -- I don't know what a chief of Police's inner circle is. Interim Chief Orosa: My whole staff. Commissioner Sarnoff. So tell me who your staff would be. Interim Chief Orosa: Commissioner, I really can't tell you. There's like 20 some odd people right now. I would have to do the search -- Commissioner Sarnoff. Right. Interim Chief Orosa: -- through files and stuff like that, and take a look at it. Commissioner Sarnoff. So you gave me what I needed, which is you're going to keep your 20 closes people to you that are competent, loyal, and whatever else it is, right? Interim Chief Orosa: The other order. Commissioner Sarnoff. The other order. Okay. And you're going to vet all those people with the City Manager. You're going to ask his permission for each and every person to say can I hire this person? Interim Chief Orosa: If I'm -- Commissioner Sarnoff. Right. Interim Chief Orosa: -- to get the job, what my intentions would be is give the Manager a list with the qualifications and a little history, a little synopsis of each individual and basically have City of Miami Page 198 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 the Manager say yes or no. Commissioner Sarnoff. And if he says no, his determination's final? Interim Chief Orosa: That's it. Commissioner Sarnoff. So if he puts the 20 people he wants around you so long as their competent and -- what was the other one? Interim Chief Orosa: Qualified. Commissioner Sarnoff. -- qualified -- I'll write that down 'cause I'm not obviously getting it. -- and -- Vice Chair Carollo: It's late. Commissioner Sarnoff. -- the heck with whether they're loyal to you because he'll make that determination, right? Interim Chief Orosa: Who will make that determination? Commissioner Sarnoff. Well, if he's going to make the determination, he may want them loyal to him. Interim Chief Orosa: Correct. Commissioner Sarnoff. So essentially, you're prepared to tender the people you keep closest to you to the Manager's decision? Interim Chief Orosa: Well, I think that's part and parcel the way it should be done, because ifI get the job, I will be loyal to him as well. Commissioner Sarnoff. Well, you would be loyal -- Interim Chief Orosa: He would be my boss. Commissioner Sarnoff. Right. But you would be loyal to the citizens of the City ofMiami, to the City Commission, to the Mayor, to the Manager. Interim Chief Orosa: Through him. Commissioner Sarnoff. Through him? Interim Chief Orosa: Correct. Commissioner Sarnoff. Okay. So the chain of command would mean that you would always run everything you're going to do through the Manager? Interim Chief Orosa: Only very -- only what the Manager desires that he wants me to run through him. Commissioner Sarnoff. Well, any changes of anybody's status, you'd run through him? Interim Chief Orosa: Correct, especially after this hearing, yes. City ofMiami Page 199 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff.. You're a quick learner, right? Interim Chief Orosa: Right. Commissioner Sarnoff.. So then any decision you make with regard to any lateral moves, any upgrades, any downgrades -- forgive me; I'm not using your terms of art, but you get what I'm saying. Interim Chief Orosa: Yes, sir. Commissioner Sarnoff.. You're going to send a memo. You're going to have a conversation. You're going to say to the Manager, is this okay? Interim Chief Orosa: Yes, sir. Commissioner Sarnoff.. All right. Now you said you were going to look into the Internal Affairs of the various officers prior to getting your 20 favorites. Interim Chief Orosa: Yes. Commissioner Sarnoff.. So how will you communicate to the Manager the status of the Internal Affairs of those officers? Interim Chief Orosa: On closed cases. Commissioner Sarnoff.. So it would only be a person that has a closed case. Interim Chief Orosa: Correct. Commissioner Sarnoff.. Andl take, it would be not a significant finding? Interim Chief Orosa: Correct. Commissioner Sarnoff.. 'Cause you wouldn't want people that had significant findings around you. Interim Chief Orosa: Correct. Commissioner Sarnoff.. All right. And everything you do then would go through the Manager? Interim Chief Orosa: Yes. Well, like I said -- Commissioner Sarnoff.. Well, I mean personnel. Interim Chief Orosa: -- the issues that the Manager wants hands on. Commissioner Sarnoff.. Will you find out what he wants hands on? Interim Chief Orosa: Yes. Commissioner Sarnoff.. How? Interim Chief Orosa: I would -- if he offers me the job, I would sit down with him and basically ask him, Mr. Manager, what is it that you want me to contact you with. Some Managers want every time somebody gets killed, please call me. Some Managers want every time a policeman City of Miami Page 200 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 gets arrested, please call me. Issues like that. I'll leave it up to him to tell me exactly what he would like me to do. Commissioner Sarnoff.. And didn't mean to go down that trail with you. I'm trying to stick to personnel decisions. Interim Chief Orosa: Okay. Commissioner Sarnoff.. So every personnel decision that you make, every time you're going to move a person, change their position, change their hours, you're going to run through the Manager? Interim Chief Orosa: My staff my appointed staff. Commissioner Sarnoff.. Only your appointed staff. Interim Chief Orosa: Yes. Commissioner Sarnoff.. So if you're going to demote a law officer in the field, you're not going to run that through the Manager? Interim Chief Orosa: No, because basically, if a law officer in the field gets demoted, it's basically disciplinary action. They have due process. And eventually, the Manager will get to discipline and he'll make the final determination. Commissioner Sarnoff.. But based on what you heard here today, don't you need to do that before you make that demotion? Interim Chief Orosa: Only for staff. Commissioner Sarno:I Only for staff? Interim Chief Orosa: Yep. Commissioner Sarnoff.. That would blow two Commissioners' theories up here right away. Interim Chief Orosa: No, because -- Commissioner, the issue is this. The issue is if a rank and file officer with civil service protections violates departmental orders, basically it's up to the discretion that we have in the Police Department to do the investigation, do the discipline, and let it go through the due process of the administration -- Commissioner Sarno:I But if we -- Interim Chief Orosa: Excuse me. -- which eventually will land in the City Manager's lap. Commissioner Sarnoff.. But you were here when we read the charter together, right? You were here when one of the Commissioners here interpreted any change of any law officer's status is theoretically to be determined by the Manager and not by you. Wouldn't it be correct if that were the rules in place prior to the civil service status of all those rights they have, the law enforcement's bill of rights, the number of people who get notified. Isn't it true that you would have to first ask the Manager's permission to make that demotion? Interim Chief Orosa: I don't believe so. Because the issue at hand is you have civil service rights and yes, the Manager will make the decision but it's usually after the fact that he gets to determine the final outcome. That's the decision. City of Miami Page 201 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff.. So prior to you -- so you feel like only for staff you would get his permission to make a lateral, a demotion or an upgrade that requires his notification prior to doing so. However, a line function employee, which for you is -- let's just call him patrol -- you would take the action yourself and then through the process, he would learn of the action you took? Interim Chief Orosa: Yes. That's the way the process has been going on since I became a police officer. Commissioner Sarnoff.. You know what; I think -- Interim Chief Orosa: And the distinction, Mr. Commissioner, is that staff does not have civil service protection. That's the distinction. Commissioner Sarnoff.. And you know what; I think you're reading the charter right. Interim Chief Orosa: Okay. Commissioner Sarnoff.. But I'm not sure you're reading it right for staff but I think you're reading it exactly right for the line function employees. Commissioner Suarez: All right. Interim Chief Orosa: Okay. Thank you. Commissioner Sarnoff.. Thank you. Commissioner Suarez: Mr. Chairman, ifI may just ask one question. Chair Gort: Yes. Commissioner Suarez: Interim chief, if an employee was incompetent and you wanted to demote him but the Manager prevented you from doing so, do you have the authority to do so? Interim Chief Orosa: No. Commissioner Suarez: If an employee was disloyal and you wanted to demote him but the Manager prevented you from doing so, would you have the authority to do that? Interim Chief Orosa: No, sir. Commissioner Suarez: If an employee was anything other than something legal and you wanted to demote him but the Manager gave you an instruction not to, could you be able to do that? Interim Chief Orosa: No. Chair Gort: Any other questions? Yes, ma'am. Commissioner Spence -Jones: Basically the same line of questions. I just want to know, Mr. Chief. Long night. What was the -- your relationship with Exposito? You knew him prior to this? Interim Chief Orosa: I basically met the chief a few years after I became a policeman and, you know, I like him. I've never had any issues with him. We've always been cordial to each other. City of Miami Page 202 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 And, you know, it's unfortunate of this situation that he's in. It's an unfortunate situation that I'm in, you know. But somebody had to take this role, and the Manager called me. I couldn't say no. Andl took this role. Commissioner Spence -Jones: Were you promoted up under Exposito, the chief? Interim Chief Orosa: Excuse me? Commissioner Spence -Jones: Were you promoted under him? Interim Chief Orosa: No. I was promoted to staff 11 years ago. I'm the most senior staff member in the Police Department. Commissioner Spence -Jones: Oh. So is that the reason why the Manager selected -- Mr. Manager, what was the reason why you selected --? Mr. Martinez: Well, he was an applicant, andl looked at his credentials andl was very impressed. He'd gone through all the universities and police training schools and things like that. Andl hadn't heard his name being in any clique or anything like that, anti-Exposito or anti Mayor or anything. It popped out at me. I looked at his resume and thought he was a good choice. Commissioner Spence -Jones: So he was -- was he the only person -- I'm just curious -- in the Department? Mr. Martinez: No. There's other people in the Department that applied. Roque applied and other people applied. Commissioner Spence -Jones: Okay. Mr. Martinez: And like he said, he's very senior. Commissioner Spence -Jones: Okay. My other question is, I recall -- like I know towards, you know, my first -- my last election when there was this whole thing floating around who was the going to be -- who possibly could be the chief. Interim Chief Orosa: Correct. Commissioner Spence -Jones: I believe Exposito was -- name was in the hat, Adam Burden's name was in the hat, andl know your name was in the hat, correct? Interim Chief Orosa: Yes. Commissioner Spence -Jones: Okay. Interim Chief Orosa: And Tom Cannon. Commissioner Spence -Jones: And Tom who? Interim Chief Orosa: Tom Cannon. Commissioner Spence -Jones: Okay. Just curious, do you have any idea why you were not selected? Interim Chief Orosa: I never put myself in the hat, so I have no idea why I wasn't selected. City of Miami Page 203 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: I know, but I'm just -- I know -- Interim Chief Orosa: It -- I -- Commissioner Spence -Jones: No one knows why they're put in the hat, but they know they're in the hat. Interim Chief Orosa: No. I know. Commissioner, the way I found out, I read in a Herald article, and then I got a phone call from a reporter in the Herald. I had no idea they were looking at me for that. Commissioner Spence -Jones: Okay. So -- because everybody had somebody that was supporting them. So that's -- who was your big support base? I'm just curious. Interim Chief Orosa: My who? Commissioner Spence -Jones: Your big support base, like felt really, you know -- your supporters in your push to be the chief. Interim Chief Orosa: Well, I -- as a commander, I worked in three different NET areas. I work Coral Way for about three years. I worked Flagami about three years, and workedAllapattah for a couple of years. So I've made a lot of friends, business people, community people, residents, andl hope and believe that they were the ones that were pushing for me and making phone calls. But supporters, you know, I don't know. Commissioner Spence -Jones: Okay. Interim ChiefOrosa: Other than that. Commissioner Spence -Jones: So I know that you've now -- you know, you're there from an interim standpoint, and -- but before, you know, this actual transition took place with you, just how has the Department changed to you from what you knew it was to what it is now? I'm just curious. Interim Chief Orosa: Under Chief Martinez, the Department ran fairly well. There was a few issues in the press that made us look bad. Under Chief Timoney, the issues in the press went away for the Department. And basically, it was a very smooth transition between one chief and the next. And he basically put us, more or less, in the national map and gave us good publicity and basically had a good vision for the Department, and he moved forward with the vision. Under the administration, I have no idea. I have no idea what the vision is. And a lot of other individuals have no idea what the vision is with the chief. Commissioner Spence -Jones: So your feeling is that there's -- the leadership is not -- has not painted a picture for what the major objectives are for the Department? Interim Chief Orosa: Correct. Commissioner Spence -Jones: Okay. So -- and you feel like that has affected the morale of the Department? Affected the effectiveness of the -- I mean, I'm just trying to understand, like when you say it's -- Interim Chief Orosa: Let me give you a quick story. The day -- Commissioner Spence -Jones: How quick? City of Miami Page 204 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Interim Chief Orosa: Very quick. Five seconds. The day Roy Brown and my lieutenant went to Internal Affairs to take over and explain what had happened, I had been told that they were all relieved in that office and they were happy that the command structure there had -- was gone. And basically, I don't want to say this permeates through the entire department, but I see more smiling faces and happy people. Commissioner Spence -Jones: Okay. All right. And l just have a few more questions. Why did you make the decision to put Roy Brown over that division? I'm just curious. Interim Chief Orosa: Couple of reasons. One, I've known Roy all my life. Not all my life; since I was in the Police Department. Back when I was a rookie, we were partners, rode together in a patrol car. And basically, I needed somebody of higher authority than a major over Internal Affairs. I would have rather have internal people running Internal Affairs, but through -- I don't know the reason why; the lieutenants in Internal Affairs were transferred out. There was no lieutenants there. So I took Lieutenant Yanes, who used to be a major and used to run Internal Affairs, and put him there and basically so that the section doesn't suffer. Somebody with experience can continue running the show there and reporting to ChiefBrown if there are any issues since he is not a staff member any longer and ChiefBrown is. Commissioner Spence -Jones: Okay. You mentioned also that you were -- I guess you held the same position as ChiefBrown at one point, which is over the criminal division, investigations? Interim Chief Orosa: Well, no. Chief Brown was the chief of Criminal Investigations Division. I was the section major. I was in charge of basically homicide, robbery, burglary. I was -- Commissioner Spence -Jones: When was that? Interim Chief Orosa: Excuse me? Commissioner Spence -Jones: When were you that? Interim Chief Orosa: Under the Timoney administration, I was there for about three and a half years. Commissioner Spence -Jones: Okay. Under -- okay, were you -- when ChiefExposito came in, were you in that department still? Interim Chief Orosa: Yes. Commissioner Spence -Jones: What years was that? I'm just curious. What year was that? Interim Chief Orosa: I believe I went upstairs in 205 [sic]/206 [sic]. And when Chief Exposito took charge in 209 [sic], I was transferred to support services. Commissioner Spence -Jones: Okay. So -- 'cause we've already mentioned it 'cause -- I'm just curious. Were you there when all the shooting stuff started? Interim Chief Orosa: Excuse me? Commissioner Spence -Jones: When the shootings started. Interim Chief Orosa: Was I in criminal investigations? Commissioner Spence -Jones: Were there any --? City of Miami Page 205 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Interim Chief Orosa: No. I was already down in support services. Commissioner Spence -Jones: Okay. Interim Chief Orosa: Basically, as soon as ChiefExposito took over, I was transferred downstairs. Commissioner Spence -Jones: Okay. All right. Just on the whole shootings issue. You know, that's the most sensitive thing in my district, of course, you know. People again, like I said, starting this morning, you know, phone calls off the hook in my office, you know. People still don't understand that this is not what this is about. Interim Chief Orosa: Yes. Commissioner Spence -Jones: Which is what I was afraid of not talking to my district first about what was going on and having them be really, really confused. But just on the whole shooting issue -- andl want to talk to you a quick minute about the tactical units, but -- which is a part of this whole thing. As chief the person that's as an interim chief what do you think you would have done differently? I'm just curious. Interim Chief Orosa: I would never have created TOS (Tactical Operations Section). TOS is a, in my opinion, nightmare. You cannot -- Commissioner Spence -Jones: I don't know what -- I'm sorry; what is TOS? Interim Chief Orosa: Tactical Operations Section. Commissioner Spence -Jones: Okay. Interim Chief Orosa: It's a nightmare. You really cannot control so many tactical people. You need to have smaller groups. TOS was supposed to be the Savior. The first year TOS was around, crime went up 1.3 percent. As of mid year, we're up 4 percent. So I don't see it working. There is a basic philosophy that have that from working so many years on the street, which is basically simple. When you have somebody protecting a dope hole, there's usually going to be a gun. Commissioner Spence -Jones: There's usual going to be what? Interim Chief Orosa: There's usually going to be a gun. Commissioner Spence -Jones: A done? Interim Chief Orosa: A gun, gun. Commissioner Spence -Jones: A gun, gun, okay. Interim Chief Orosa: Gun. When a policeman drives by in a police car, they're going to take off running and dump the gun, and you can arrest them later, you can pick up the dope, et cetera. When you have so many tactical people and a rental car with tinted windows start approaching, the guy protecting the dope hole is not thinking of a cop. He's thinking I'm going to get ripped off. And the first thing in his head is to protect himself and the dope hole. And when he sees a couple of individuals that he doesn't know they're cops with guns, he's going to pull his gun and he's going to get shot. And that's my opinion as to what's going on with these police shootings. And that's why I really do not agree with the creation of TOS. City of Miami Page 206 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Wow. That's very interesting. Wow. So -- 'cause -- from what identf been explained by the Manager, these tactical units -- I mean, they have been successful, to my understanding. I mean, even the -- we share part of -- it's Joe's on -- you're on one side; I'm on the other. And I'm not even sure if that was the tactical unit that got to the bottom of -- to my understanding, is it done yet? Is it -- have they found the person yet? Unidentified Speaker: Yeah. Commissioner Spence -Jones: Okay. You know? Do you know, chief? Interim Chief Orosa: Excuse me? Commissioner Spence -Jones: Do you know if they found the -- was it a tactical unit that addressed the Joey -- I have a restaurant tour in my district, Joey -- I don't know Joey's last name. Interim Chief Orosa: I -- unfortunately, from my position, I have no idea as to what would -- what unit did resolve the restaurant issue. Commissioner Spence -Jones: So -- but -- so tactical units do work? Are you saying they do work, but just not so many of them? Interim Chief Orosa: Correct. When I was up in the fifth floor in criminal investigations, we had a tactical unit called FAT, which was Felony Apprehension Team. And basically, they worked close -- hand-to-hand with the investigative group. Whenever a suspect was determined, a homicide offender, et cetera, he would give it to FAT and FAT would go find him and bring him in. In smaller groups it works because you have a lot of the element of surprise. In larger groups, it's my opinion, it doesn't work. Commissioner Spence -Jones: So based upon what the chief -- in his testimony earlier, he mentioned that the Manager asked for him to make changes, you know, with the tactical units, and by doing more patrolling and reducing the cost and all of that, which I'm -- based on what Exposito said, he did say he made some of those changes. Are you implementing the plan already that he's done or have you -- are you -- have you started reducing the tactical units or you're just leaving -- what -- are you leaving everything exactly the way it is? Interim Chief Orosa: As of now, I am abiding by the wishes of the Manager, which is do not make any moves. Commissioner Spence -Jones: Okay. Interim Chief Orosa: Leave things the way they are until this is determined. It would be my goal, ifI get the job in the future, that need to basically audit and basically find the functions of every unit in order to make the Police Department efficient and transfer people in patrol. The magic number in patrol is 401. If you have 401 officers, there is no overtime associated to patrol or shortages. And you need to do whatever it takes to put 401 person -- patrol officers in patrol. When you go lower than 401, now you're starting to buy into the overtime. And right now, as of I guess, couple of days ago, we were at 357. That's why we are incurring so much overtime usage to bringing manpower and people in to cover shortages. My goal would be to pull people from other areas and put them in patrol to reach that magic number of 401 in order to cut all the overtime that manpower shortages is eating up our budget. Commissioner Spence -Jones: This is my last question on the demotion and stuff because we've been talking about demotion, demotion, demotions. Outside of the three people that have been City of Miami Page 207 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 demoted -- well, not demoted. They haven't been demoted. But apparently, he didn't follow the instructions on the demotion. Are there any other demotions that you know of that have happened outside of that -- Interim Chief Orosa: Under -- Commissioner Spence -Jones: -- under Exposito? Any other demotions? Interim Chief Orosa: Not recently, no. Probably about a year ago, two people were demoted and were replaced. Commissioner Spence -Jones: I'm just curious. Do you know who they were? Interim Chief Orosa: One was Herbello, Major Herbello, and the other -- oh, wait a minute. It was more. It was Commander Castro and Commander Patino and Major Herbello. Commissioner Spence -Jones: Okay. So three -- were they all -- I'm just curious -- did -- were you noted about them? Mr. Martinez: I wasn't the Manager then. Commissioner Spence -Jones: Oh. Was anybody notified? I guess that would be a question I would ask you later? Unidentified Speaker: The chief. Commissioner Spence -Jones: Yeah, ask the chief. So I just was curious as to whether or not past administration outside of you actually notified -- did these three people get notification as well. You don't know? So -- okay, so hopefully, I will find that out when he sits up -- I think that was the only question, you know, that had around that. Thank you. Interim Chief Orosa: Thank you. Chair Gort: I have a question. One of the -- Interim Chief Orosa: Yes, sir. Chair Gort: -- there's a lot of rumors been going around this town for a while. I mean, I first find out about this whole thing. People calling me. Reporters telling me are you aware. And then one of the times I come to work and there's all kinds of reporters waiting for me outside asking me if a change was going to take -- if the chief was going to be suspended. A lot of rumors was taking place. The chief was suspended on Tuesday. Am I correct? Vice Chair Carollo: Yes. Chair Gort: On Tuesday. From Tuesday to today, public safety is one of the major goals that we have within the City ofMiami. And have -- we can assure the individuals that we have had to provided the services necessary to comply with public service for residents of the City ofMiami and visitors? Interim Chief Orosa: Let me give you an example, Mr. Commissioner. Last night I got -- received a few -- well, two days ago I've been getting briefings from basically what's happening in Washington and New York about these terrorist threats. And basically, last night I met with the commander of SIS (Special Investigative Section) who had a briefing -- a recent briefing. And as of that conversation, I took immediate action and called the commander of downtown to City ofMiami Page 208 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 put extra patrols around the station, around downtown, around the PAC (Performing Arts Center), and basically in Coconut Grove. When we finish here, they'll start here, and basically put more individuals in other areas of the City that have close proximity to populations, including the Brickell area. Chair Gort: Thank you. Commissioner Suarez: Mr. Chairman. Interim Chief Orosa: Yes, sir. Chair Gort: Commissioner Suarez. Commissioner Suarez: I'll yield to the Vice Chairman who hasn't really been able to ask any questions. Vice Chair Carollo: Thank you. Mr. Interim Chief could you tell me the difference between a civil service rank and any rank over captain in the Police Department? Interim Chief Orosa: The over rank captain? Vice Chair Carollo: Any rank over captain -- Interim Chief Orosa: Yeah. Vice Chair Carollo: -- versus civil service rank. Interim Chief Orosa: Civil service is protected under the charter from basically the entry rank until the rank of captain. And basically, those are positions that you have to take examinations and be promoted for those. And based on civil service, you have certain protections and certain rights. Above captain is up to the discretion of the chief to appoint whomever, and as we heard today, the final say so is with the Manager. And basically, that is the people that will act on the vision that the chief has created for the organization. Vice Chair Carollo: And that's when you were talking about -- or Commissioner Sarnoff, that you two were speaking with regards to your 20 favorite people and so forth? Interim Chief Orosa: I don't have 20. He -- Vice Chair Carollo: Well, maybe you have 15. I don't know. Maybe you have 25. I don't know. But that's what you were speaking about -- Interim Chief Orosa: Yes. Vice Chair Carollo: -- with regards to your appointed staff. I think is what was mentioned. Interim Chief Orosa: Correct. Vice Chair Carollo: And there will be some changes, is what you mentioned, because you would want to bring some of your people whether it's because of competency or -- you know, I should have written it down too. Competency -- Chair Gort: Efficiency. Vice Chair Carollo: -- quality or -- City of Miami Page 209 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: And efficient. Vice Chair Carollo: No. And then the last one was loyalty. Interim Chief Orosa: We -- but we're putting the cart before the horse. I have no idea whether I'm going to get the job or not, sir. Vice Chair Carollo: Right. But still, because, you know -- look, I'll say it point blank. After today's meeting, either way it goes, I know already the Manager has stated, so I won't ask him again, that he has zero knowledge, training in law enforcement; however, I'm going to have to buy him a big badge because he is going to be the most powerful law enforcement figure in the City ofMiami. And in a way, I don't necessarily think that as a good thing. Well, I'll go a step further. That is not a good thing, because even you stated that your appointed staff is appointed by the chief and then you went a step further and said -- pointed to the Manager and said And the Manager has to approve." Interim Chief Orosa: Correct. Vice Chair Carollo: You know, you spoke about what would it look like if -- then you went to morale. And this is where I think paramilitary, which is extremely important. What would it look like in morale versus politics? Right now everyone who has vision of going up the ranks says, the heck with the chief. This is my buddy. This is my buddy. And that's where paramilitary goes out the door and politics takes place. Interim Chief Orosa: Only, sir, if the Manager allows it. Vice Chair Carollo: Well, the bottom line is right now the message we are sending right now, regardless of how the vote goes, regardless of whether the chief get's reinstated or not, the message we are sending is the most powerful law enforcement person right now is the City Manager. So you're going to have the biggest badge, believe me. And I'll tell you what. I'll go a step further. You're going to need to get your firefighter's hat and so forth, because, yes, that is the truth. That's what we're saying, that the chiefs actually really don't have any power. I don't know if the question is correct or not to ask or not, but I remember when the chief first was appointed. And by the way, at least I -- I mean, I wasn't -- I was just told, hey, you better hurry up or you're going to miss the swearing in. Yeah. You know, which is another ironic -- the irony -- you know, we have no say whatsoever, even ask or, you know, suggesting us who will be the chief. However, when it gets down to it, it comes to us. But with that said, don't you think that also sends the wrong message down the ranks, the rank and file, that realistically, the chief of Police is not in control of who he believes his appointed staff should be? That realistically, if you want to promote this person or promote that person, or I'll go a step further. Forget what you want. What if the Manager says promote this person, promote that person, demote this person, and this is who you're going to work with. Interim Chief Orosa: Well, Commissioner, the fact of the matter is that any police chief is going to run into that, number one. Number two is that that is part of having a good relationship with your Manager so that you can have open communication and say, yeah, I know you want this guy, butl don't like him, and you know, you discuss the matter and you find a common solution to it. Mr. Martinez: Commissioner, may I clarify something? Vice Chair Carollo: Sure. Mr. Martinez: Yeah. When the chief approached me to promote, I didn't ask for the names or City ofMiami Page 210 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 anything. I said, fine. Do -- promote whoever you want. It's when I found out about the demotions that I stepped in and said hold on. I want to hear cause. But I didn't interfere. I didn't ask for the names on who he wanted to promote into the vacant slot of a retired person and shuffled somebody from central to south. I didn't interfere at all. I said go ahead with the promotions. When I find out about the demotions is when I said let's hold back and continue to discuss it. Vice Chair Carollo: And this is part of the chiefs appointed staff or -- well, you could say his appointed staff you know, which is the difference between a civil service rank where you take exams -- Interim Chief Orosa: Correct. Vice Chair Carollo: -- and do other -- well, you could call it all exams, but you do interviews and other forms of applying for the job and just being appointed. So it's -- would it be fair to say that anything that is not civil service rank is actually appointed? Interim Chief Orosa: Yes. Vice Chair Carollo: Okay. So realistically, the Manager could ask you to appoint a sergeant or a police officer to assistant chief. Interim Chief Orosa: Well, it's happened in the past, believe it or not, and we frown away from it, and basically that's where the interpersonal skills between the Manager and the chief have to basically work things out because A, it sets a bad example, and B, it lowers morale throughout the ranks. Vice Chair Carollo: And that's exactly why I'm saying it. Because regardless of what we do today, we are now having paramilitary versus politics. And realistically, we are letting everybody know that the chief of Police really is not in command of the Police Department. It's actually the City Manager. I wanted to ask -- I remember when the chief first got appointed, there was a whole slate of -- I don't know if they were demotions or promotions or so forth, but there was, let's say, movement. I don't know if each one of those movements went before the City Manager and had to be approved or not. I heard you say now that every move you were going to make was going to go before the City Manager. I don't know if this is new precedence that we're doing. Again, I'm just cautious because since there was so much concern with regards to how it will look and morale, I think we are definitely tapping into some very -- an area that is very, very dangerous. Interim Chief Orosa: Mr. Commissioner, can I answer a question there? Vice Chair Carollo: Sure. Interim Chief Orosa: The history of this Police Department has always been the same. The police chief in order to promote or demote, has to get the okay from the Manager, so that would not change. It's up to the Manager to decide how much he wants to get involved or not in those aspects. So I'm not going to tell the Manager not to get involved or get involved. We just hope, as a group, that, you know, the Manager will allow his chief free hands. Vice Chair Carollo: So, in essence, what you're saying is -- Interim Chief Orosa: It's always has happened. Vice Chair Carollo: -- that it's based on the judgment of the Manager how involved he's going to get or not with the Department of Police, the Department of Fire with regards to personnel or City of Miami Page 211 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 any matter, even though he may or may not have any experience? Interim Chief Orosa: It's always been like that, sir. Vice Chair Carollo: Okay. That aside, let's talk a little bit about TOS. Interim Chief Orosa: Correct. Vice Chair Carollo: And by the way, it's not that I agree or disagree with everything you said, but I just want to touch upon some of the things. You said you would eliminate TOS altogether? Interim Chief Orosa: Well, not altogether. The narcotics people will stay working narcotics. The FAT squad would go up to the fifth floor, where basically I created it, and -- Vice Chair Carollo: And I'm sorry; repeat that again. The what squad? Interim Chief Orosa: FAT, Felony Apprehension Team. And basically, juvenile gangs would go back to investigations so that they can perform investigations. You will have a smaller group of TOS officers, maybe not with the name TOS, but a smaller group of officers doing that way. Robbery intervention would go back up to robbery, because right now robbery investigations are under one chief and robbery interventions are under another chief. So to me it doesn't make sense. You want the robbery investigators to have full handle with the robbery intervention team. Vice Chair Carollo: But one is proactive and the other one is reactive. No? Interim Chief Orosa: One does investigations. The other one's -- Vice Chair Carollo: Right. Interim Chief Orosa: -- proactive, but the other one gives -- Vice Chair Carollo: And that -- Interim Chief Orosa: -- should be helping the investigators in trying to catch the offenders they're looking for. Vice Chair Carollo: But that is why one is in tactical operations 'cause they're proactive. And the other one is in investigative operations because they're investigating a crime that already has occurred. Interim Chief Orosa: But there is no need to have that. They can both be together. Vice Chair Carollo: Okay. I'm not going to argue of what's the best way or so forth -- Interim Chief Orosa: Nope. Vice Chair Carollo: -- 'cause either way, it could be done. However, when you said that you would eliminate tactical operation section, it really caught my ear, and so much so that would you think that -- or do you believe that Dade County has a good Police Department? Interim Chief Orosa: At times. Vice Chair Carollo: At times. Do you think --? Interim Chief Orosa: I believe our department's the best. City of Miami Page 212 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: Okay. That's fair. So then at times they are -- you believe they have been a very good department or good department? Interim Chief Orosa: Yes. Vice Chair Carollo: Okay. Do you know if the Miami -Dade Police Department has a tactical operations section? Interim Chief Orosa: They have a robbery intervention team, and they have a section dedicated for tactical officers. Yes. Vice Chair Carollo: And do you think they just did this, or do you think it's been for many years? Interim Chief Orosa: No. They've had it for many years. Vice Chair Carollo: So it's -- it'll be fair to say that at the time that they were a good department on your opinion, they also had a tactical operation section, so tactical operations sections could work. Interim Chief Orosa: Yeah. If you manage it correctly, it could work. The issue also, Commissioner, is that the County has over 3,000 officers and supervisors and everything and they can afford to have that. We're a smaller department that we may not be able to afford that. Vice Chair Carollo: I don't know what's the count of officers right now in the County, but they also patrol a much larger area, correct? Interim Chief Orosa: Well, they also lost a lot of area recently, and their numbers haven't gone down that much. Vice Chair Carollo: Well -- but they also patrol a much larger area. Interim Chief Orosa: Yes. Vice Chair Carollo: I mean, I'm sure you don't have the backup to see exactly what areas they patrol or not or how many officers per unit -- I'm sorry, per squad and so forth. I don't think you have those numbers. Interim Chief Orosa: No. Vice Chair Carollo: Okay. Andl don't have those numbers right now. So it's fair to say that they patrol a much larger area than the City ofMiami. As far as the 401 officers foot patrol -- now, by the way -- and like I said before, I don't disagree with everything you say, but I don't agree with everything you said. Interim Chief Orosa: Okay. Vice Chair Carollo: I mean, you know, I am not -- Interim Chief Orosa: As long as we can agree to disagree, that will be good. Vice Chair Carollo: No. And that's fine. I'm not here to disagree with you or so forth. I just want to make sure, you know, we have some of the facts correct, like for instance, when you said you would eliminate TOS, I wanted to clam, you know, what does that exactly mean, because now it's changed a little. City ofMiami Page 213 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Interim Chief Orosa: Commissioner, what I mean by that is it probably the section but not the function. The function will remain operational the way it is, but under a different structure. Vice Chair Carollo: And that -- Interim Chief Orosa: And -- Vice Chair Carollo: -- structure will have to be approved by the City Manager that has zero -- Interim Chief Orosa: No. Chair Gort: No. Vice Chair Carollo: No? Interim Chief Orosa: No. Vice Chair Carollo: So you would have the same officers doing the exact same thing, just under a different department, or how would that work? Interim Chief Orosa: What I would like to do is basically put the people that work robbery back in robbery and the people that work in Juve Vice Chair Carollo: Yeah, but he brought all this up. He brought up TOS. He brought up the 401, so -- Commissioner Suarez: I understand, Commissioner. But this is not a job interview. Applause. Interim Chief Orosa: I hope it is. Commissioner Suarez: I mean, this is about something very serious -- Chair Gort: Please. Commissioner Suarez: -- and, you know -- Vice Chair Carollo: I understand. Andl think that patrol is very serious, andl think that public safety is very serious. And when you're saying you're going to eliminate TOS, you know, I think that's, you know -- Commissioner Suarez: But he's not being interviewed. Vice Chair Carollo: I understand. But some of the things that he said, you know, are important to me. And you know what; then maybe when -- Commissioner Suarez: Let me ask you this. Vice Chair Carollo: -- maybe when he was saying it -- Commissioner Suarez: Let me just ask him a question. Vice Chair Carollo: -- we should have said, hey, listen, this isn't about that, and you shouldn't be speaking about that. That was, I think, the appropriate time to say, hey, listen, you know, why City of Miami Page 214 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 don't we just stick to the issue. Commissioner Suarez: Let me just ask one question then. If you wanted to eliminate TOS and the City Manager told you that you could not eliminate TOS, can you eliminate TOS? Interim Chief Orosa: Basically, he can tie my hands with the budget. Commissioner Suarez: Can he -- Vice Chair Carollo: No, no, no. Commissioner Suarez: -- give you a direct order: you are not to eliminate TOS? Interim Chief Orosa: Correct. He can tell me no, I don't want you doing it, and would not do it. Vice Chair Carollo: Yeah, which is -- Interim Chief Orosa: But, see -- Vice Chair Carollo: -- my point. He's going to hold the biggest law -- he will be the top law enforcement officer. This is the top cop in the City ofMiami. Commissioner Suarez: And I can understand that, you don't like that message. That's a totally understandable position. But unfortunately, that message was sent by the drafters of our charter, and that is the law that we have to abide by. Applause. Chair Gort: Excuse me. Commissioner Suarez: You know, that message -- Chair Gort: Excuse me a minute. Wait a minute. Commissioner Suarez: -- that determination -- Chair Gort: Wait. One more time and I'll put you all out, everyone. Please. We've been doing very well. It's long. We've been here now for about 13 hours. We're all tired here. We all want to finish. So please, let's keep it down. Commissioner Suarez: Mr. Chairman, ifI may? Chair Gort: Thank you. I'm sorry. Go ahead. Commissioner Suarez: I'm not aware that the President of the United States has any military experience, but the President of the United States is still the Commander in Chief ofArmed Forces. Is that not correct, Madam City Attorney? And is that not engrained in our Constitution? Thank you. Vice Chair Carollo: And -- Commissioner Suarez: And followings the law is a good message, isn't it? Thank you. Vice Chair Carollo: And other than appointing the general, does he get involved with personnel; City ofMiami Page 215 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 and I want you to move this person; I want you to put that person in? Commissioner Suarez: I'm sure that if he said don't move him, he wouldn't. Mr. Milian: Commissioner, I can -- I spent 18 years in the active and reserve, andl can certainly talk to that point, if you'd like to, right now. Chair Gort: Excuse me. Please. We're discussing about the -- Mr. Milian: I was just offering to be helpful. Chair Gort: -- discussion by the Commission. Anybody, address them through me, please. Vice Chair Carollo: I don't think -- Chair Gort: From now on -- let me -- I'm going to be very strict. Anybody comes through me, okay. Thank you. Go ahead. Vice Chair Carollo: Mr. Chairman, thank you. And ifI could maintain the floor? Chair Gort: Yes, sir. It's yours. Vice Chair Carollo: Thank you. My original point was very simple. When Mr. Milian started mentioning as far as how it would look and as far as morale, yes, all this is very important. And the issue with the charter, I think, will be addressed in the future. Various issues with the charter, I think, will be addressed in the future. But yes, paramilitary versus politics is something that if you said how it would look in morale, yeah, I think it's extremely important. I think it's extremely important. When you mentioned as far as patrol, yes, I think it's extremely important. Since you went there already, I wanted to do questions. I stayed quietly. I let every Commissioner here speak and then, you know, I had my own questions. And realistically, it was questions about all the things that you have mentioned. When you mentioned crime has gone up 1 percent and 4 percent -- I remember before Mr. Milian, when we were talking about the budget, saying, No. Let me see a document, let me see a document. "I'd like to see the documents backing up these numbers. I'd like to see the documents backing up the 401 patrol is the ideal -- you know, where are you coming up with these figures? I'm not saying they're wrong. I'm just saying show me backup, just like Mr. Milian was asking for documentation and backup when the budget. So I think it's valid. I think if you didn't think it was valid, then at the time -- Commissioner Suarez: No, I never said that. Vice Chair Carollo: -- that he was speaking, then that's the time to say, hey, listen, you know, why are you going there? Commissioner Suarez: Well, I don't -- Vice Chair Carollo: Let's go another direction. Commissioner Suarez: -- I think that's a legitimate question. Vice Chair Carollo: Let's stick to the issue. But you know, I listened to it. I didn't -- you know, I didn't object. I didn't say anything. I let every Commissioner do their questioning, and then when it was my time, I thought well, he's already spoken of all this, let me do a follow up question. Chair Gort: Commissioner, let me -- just for one minute, let me interrupt you. When it comes to City of Miami Page 216 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 us and we're discussing, we're allowed to discuss whatever we want. Commissioner Suarez: Of course. Chair Gort: Okay. So that's -- we're not following the orders of the lawyers or whatever. We're discussing as a Commissioner. You got the right and all of us have the right to discuss whatever we like for as long as we like. That's why you're elected. Vice Chair Carollo: Yeah. Right. Chair Gort: Okay. So please continue. Vice Chair Carollo: And thank you, Mr. Chairman, and that's what I thought. But you know, apparently, you know, it was sidetracked a little bit. And pretty much, I have said everything that I wanted to ask you. I mean, you know, I wanted to see the backup with regards to 401 as the ideal patrol and the backup for the 1 percent, 4 percent, and all that. Andl don't know if you actually have that or not. Interim Chief Orosa: Not right now, but I can get it to you through the Manager, sir. Vice Chair Carollo: Well, let's see what happens here first -- Interim Chief Orosa: Okay. Vice Chair Carollo: -- and go from there. Commissioner Suarez: Mr. Chairman, ifI may? Chair Gort: Thank you. Yeah. Commissioner Suarez: When the Commissioner's done. Chair Gort: Go ahead. Commissioner Suarez: Thank you. In the US Military, does the President of the United States not decide whether we should have a certain number of troops in a certain region of the country? Mr. Milian: Is that a question, Mr. Chairman, that we can --? Chair Gort: No, no. Excuse me. Wait. Who are you asking that question to? Commissioner Suarez: Asking the City Attorney. It's a constitutional question. Ms. Bru: I've never served in the military. Commissioner Suarez: Then I'll ask it of somebody who has. Mr. Milian: Commissioner, it's a longstanding tradition. The President of the United States, whether he has served in the military or not, is the Commander in Chief. On occasions like when Harry Truman fired the greatest general we've ever had, Douglas McArthur, he was condemned for not having been a military man himself. It's actually false. Commissioner Suarez: Eisenhower, too. Mr. Milian: He served as a captain in the National Guard Artillery in World War I, but he had City of Miami Page 217 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 never gone to college, and he was ridiculed. The way the Defense Department has been reorganized, especially in the last 20 years, it is absolutely a decision of the civilians about who takes command authority, who takes care of each and every major command. True deployments have to be approved by the President of United States in his position as Commander in Chief. Just like when a general, regardless of his rank and accomplishment, like Stanley McChrystal allowed his staff to ridicule or make fun of the President and his staff, he was relieved of his command by the Commander in Chief President Obama, who has never served in any military capacity. So to answer the question from a constitutional legal point of view, we have one principal from the beginning of the Republic established, I think, by our founding fathers and, by tradition, by George Washington, that the military and paramilitary forces are always subservient to the civilian leadership. You all get elected to represent us. We trust in the democratic process that your wisdom shall prevail. We will never allow stars, uniforms, or guns to dictate public policy. And my military or paramilitary man who cannot abide by that principle is subject to court marshal. Even great generals have been court marshaled for simply making statements that defy the civilian authority. And that is a longstanding legal principle. Andl think the McChrystal case is instructive, but we can go back to the founding of the Republic when George Washington -- Commissioner Suarez: I don't -- Mr. Milian: -- himself had to call a mutiny. Commissioner Suarez: -- think he needs to go any further. I think we can -- Chair Gort: Thank you. We got the history. Commissioner Suarez: We get the point. Chair Gort: Thank you. Commissioner Suarez: I just have a couple of follow-up questions and, you know, at this point I'm not so sure how relevant it is, but I guess if we're all allowed to have a little bit of latitude, then I guess I'll ask them, 'cause I feel pretty strongly about them. You made a statement earlier that Chief Timoney put us -- your quote was -- I'm quoting whatl thought your quote was, Put us on the national map. "I assume you mean in a good way? Interim Chief Orosa: Yes, of course. Commissioner Suarez: Did he get a lot of federal funds for the Department? Interim Chief Orosa: Not necessarily in that aspect. We did get federal funds, and we did hire a bunch of policeman on the federal funds. But the way I was using that statement was that he did a lot of interviews and national interviews. He was a national figure. Commissioner Suarez: Had a national reputation. Interim Chief Orosa: Exactly. And a lot of people, internationally and nationally, would come and visit and would take a look at Miami and speak highly of Miami. So basically, that's what I meant. Commissioner Suarez: Wasn't he reported to be the friend of the vice president or something like that, Biden? Interim Chief Orosa: Yep. I got a picture with him. City of Miami Page 218 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: Okay. Are you aware that on September 6, the Wall Street Journal, the New York Times, and USA Today have all written articles that would characterize as negative concerning the incidents that are happening here today? Interim Chief Orosa: I wasn't aware of it, sir. Commissioner Suarez: Do you think that puts the City of Miami and the reputation of the Department in a good light? Interim Chief Orosa: No. Commissioner Suarez: Thank you. Chair Gort: Okay. Now that everybody ask their questions, may I ask some questions? I imagine you have a -- in the police you have a chart, a organization chart. Interim Chief Orosa: Correct. Chair Gort: Which chart, they have to be approved by us -- by the Manager and by us. Now, Commissioner, you were worry andl am worried too, send a wrong message. I agree with you. In a paramilitary, if you put the politics into it, it ruins it. Unfortunately, all the selections in the past has been political selections. And most of the time when the persons gets selected, they're asked you got to have so and so and so with you and that's something that we can stop. We can stop it by making the decision come to the City Commission. We got the charters that's got to come up. We got to send the message that the politics got to get out of there. That's the message we have to send. And that -- we've been talking about we need charter review. We need to review a lot of things. Thanks to your work, a lot of the decisions that were made before by the Manager or by Administration are now being made by the Commission, andl think that we are the people elected, we're the one that have the responsibility to make the final decisions. Commissioner Suarez: That's right. Chair Gort: So I can promise you that we'll change it. One question that I have -- at one time -- I'm a great believer in ranks and earn your ranks by study and earn your ranks by your work. How many captains do we have today? Interim Chief Orosa: One. Chair Gort: When was that stopped, do you know? Interim Chief Orosa: Some time ago, sir. We used to have two. One was promoted under Chief Exposito, and we only have one now. We haven't had a captain's exam in a very long time. We haven't had a lieutenant's exam in a very long time and that's part of the problem. Chair Gort: Okay. Thank you. Interim Chief Orosa: Yes, sir. Chair Gort: I don't have any other questions or comments. Any -- Commissioner Sarnoff. I have a question. Chair Gort: No. I knew you had a question. Commissioner Sarnoff. Chief Blom is still in his position? City of Miami Page 219 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Interim Chief Orosa: Yes. Commissioner Sarnoff.. And who does he report to? Interim Chief Orosa: Right now technically to me. Commissioner Sarnoff.. And he is reporting to you? Interim Chief Orosa: Yeah. He came to me -- my office not too long ago and today, he took the day off. Commissioner Sarnoff.. So Chief Blom has not changed his position at all? Interim Chief Orosa: No. Commissioner Sarnoff.. Okay. Interim Chief Orosa: Let me add, Commissioner. Nobody -- I've never changed any positions other than the Internal Affairs. Everybody remained the same. I am adhering to the wishes of Chief Exposito to keep Roque and Perez out of the their perspective areas, because I do not want to circumvent or do anything that he started, other than the issue of Internal Affairs, which I found it important, because we don't know how this is going to end. And don't want to make changes that it's not going to agree with him. So that's part of the issue thatl haven't done any changes, andl haven't put anybody back to where they were. Commissioner Sarnoff.. The reason I asked that because it was communicated differently to me, andl just went through a crime spree in Morningside, and changes were going to be implemented, andl don't know if they've been implemented because he's told me he's not been able to implement the changes. So I want to make sure that you're on record saying, Chief Blom is still on the position he's in as he was before and he's reporting to the same person officiously as you, as he was before, and that there's no impediment to any changes he wishes to make. Interim Chief Orosa: No. Like I said, that basically the only change I made was Internal Affairs. Commissioner Sarnoff.. And l just want to make that on the record clearly. Interim Chief Orosa: Yes, sir. Commissioner Sarnoff.. Okay. Commissioner Spence -Jones: Mr. Chairman, I just have -- I'm sorry. Chair Gort: Yes. Commissioner Spence -Jones: -- just one little question. This is on the August 5, and we didn't really talk about this much earlier, but I do want to mention this. And not to put anybody on the spot, but I just want to be clear on the August 5 e-mail it referenced the Lieutenant Cabrera. I guess the chief had an issue. I'm just now seeing -- you know, like really understanding. Luis Cabrera is actually assistant City Manager in the Manager's office, correct? Interim Chief Orosa: Correct. Commissioner Spence -Jones: So is he now -- is he rolling back or is he going back -- I'm trying City of Miami Page 220 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 to understand how that -- I'm learning all this stuff so -- explain -- is he going to -- he's on City -- he's on the -- is he on the payroll for the -- for you? Interim Chief Orosa: I have no idea. Commissioner Spence -Jones: Okay. Interim Chief Orosa: That -- I -- Commissioner Spence -Jones: Do I ask the Manager that? Chair Gort: Yes. Mr. Martinez: He's being paid for out of the Police Department. Commissioner Spence -Jones: Out of the Police Department? Mr. Martinez: Yeah. He's on loan. Commissioner Spence -Jones: So does that mean he's staying there or he's going to --? Mr. Martinez: No. He's on loan to the City Manager's office -- Commissioner Spence -Jones: Right. But does he -- Mr. Martinez: -- from the previous administration -- from the previous City Manager. Commissioner Spence -Jones: From the previous City Manager. Mr. Martinez: Right. He's on loan to us. Commissioner Spence -Jones: Okay. So -- 'cause he has this in here, you know that? Mr. Martinez: Yes, I do. Commissioner Spence -Jones: Okay, so -- and he's -- you know, he's making a point about financially, you know, this is an issue, andl guess he wanted to kind of roll him back. So I guess you didn't -- do you -- did you deny that? Mr. Martinez: Yes. I told him that I wanted to keep the same arrangement that we have today until a little further, because he's helping with the union negotiations and that type of thing. Commissioner Spence -Jones: Okay. No problem. And then he's going to go back to --? Mr. Martinez: And then -- right. And -- well, and then that'll be determined later because as a lieutenant, he won't be able to assist us with union negotiations. Commissioner Spence -Jones: Okay. Does he go back as deputy chief? Mr. Martinez: That's up to the -- to whoever's chief. If he -- Commissioner Spence -Jones: Okay. Chief you're the chief now, interim chief. Interim Chief Orosa: Yes, ma'am. City of Miami Page 221 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: So once union negotiations are over, which will be over hopefully by the end of September, right, hopefully. So does he roll back to you if you're there? Interim Chief Orosa: The bottom line is that I don't know what's going to happen tomorrow and Commissioner Spence -Jones: I know. But I'm just -- I'm asking -- I'm not play -- I'm just going to ask you straight. Does he go back to you or will he go to you? Interim Chief Orosa: If he's on loan to the Manager's office -- Commissioner Spence -Jones: Because he's in your -- he would be technically in your budget now, right? Interim Chief Orosa: Yes. And he wishes to come back, he is free to come back. Commissioner Spence -Jones: Okay. As deputy chief? Interim Chief Orosa: As -- Commissioner Spence -Jones: Same position? Interim Chief Orosa: Correct. Commissioner Spence -Jones: Okay. Interim Chief Orosa: If that's the position he holds now. I'm not sure. Commissioner Spence -Jones: Okay. So he wouldn't roll back to what the chief was suggesting, which is -- what is it, lieutenant? No, he wouldn't roll back to that. Vice Chair Carollo: Yes. Whoa. Commissioner Spence -Jones: Yes? Vice Chair Carollo: As far as civil service, that's what the chief has said, to roll back to lieutenant, which I think he agreed to. I think he actually sent a memo asking for it or so forth. Commissioner Spence -Jones: Okay. Vice Chair Carollo: And by the way -- andl don't know that much about it, because that was part of what I asked the City Manager for an explanation since it was written by the chief and I'm still waiting for an answer. Commissioner Spence -Jones: Okay. I was just curious, 'cause I know that it does have a financial impact on what you're doing. Interim Chief Orosa: Correct. Commissioner Spence -Jones: And I'm sure you'll need a deputy chief. So if that is the case -- Interim Chief Orosa: The issue with -- Commissioner Spence -Jones: -- you know, obviously the chief -- our chief now is not one in that -- you know, has not agreed to have that happen, based upon this memo. That's what I'm going City of Miami Page 222 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 to go on. Interim Chief Orosa: Right. Commissioner Spence -Jones: Okay. Interim Chief Orosa: I have no idea what the memo says. I know that -- I really don't know whether he was demoted or stays at deputy chief when he was assigned in the Manager's office. That is something that, if I'm selected, I would have to decide whether he's coming back. Commissioner Spence -Jones: Okay. No. I just was curious. Interim Chief Orosa: If -- even if he wants to come back. That's something -- Commissioner Spence -Jones: Okay. Interim Chief Orosa: -- I don't know. He may want to -- Commissioner Spence -Jones: No problem. I was just -- Interim Chief Orosa: -- remain on loan. Commissioner Spence -Jones: No problem. I just was -- Interim Chief Orosa: Okay. Commissioner Spence -Jones: -- only because it was submitted as evidence, I just wanted to, you know, just know what the situation was around it. Interim Chief Orosa: Okay. Commissioner Spence -Jones: I'm finished, Mr. Chairman. Chair Gort: Okey-doke. Thank you. Any other questions? Mr. Chavez: Briefly. I think you indicated some issues with morale are currently in the Department, correct? Interim Chief Orosa: Correct. Mr. Chavez: Were there any morale problems with Chief Timoney? Interim Chief Orosa: Every organization go through morale issues. Yes, there were morale issues towards the latter part of Chief Timoney's administration. Mr. Chavez: In fact, there was a vote of no confidence within the Department against Chief Timoney? Interim Chief Orosa: Yes, sir. Mr. Chavez: Any such action against Chief Exposito in the time you've been there? Interim Chief Orosa: No, sir. Mr. Chavez: Now you've been in law enforcement) think 31 years now? City of Miami Page 223 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Interim Chief Orosa: Yes, sir. Mr. Chavez: Would you agree with me that the philosophy of a Police Department should be dictated with someone with law enforcement experience? Interim Chief Orosa: Yes, sir. Mr. Chavez: That's a fair statement, correct? Interim Chief Orosa: Yes. Mr. Chavez: So in this instance, should it be the City Manager's philosophy that dictates policy within the Police Department, given the fact that he's already explained that he has no law enforcement experience? Interim Chief Orosa: Well, the philosophy should lie and division should lie with the chief but the Manager has controlling interest, such as budget, such as personnel matters, things of that nature. And like the charter says, issues with personnel lies solely at the discretion of the Manager, so we have to live with the charter. Mr. Chavez: Now -- Chair Gort: Excuse me. Commissioner Suarez: Mr. Chairman, please. Chair Gort: Yes, sir. Commissioner Suarez: The defense attorney is asking him to interpret the charter. It's a legal document. I'm not -- are you a lawyer, sir? Interim Chief Orosa: No. Commissioner Suarez: Okay. I think the City Attorney has interpreted that document on this issue several times today, probably almost ten times today. So I'm not sure why the attorney for the defense would ask a nonlawyer to interpret a legal document that the City Attorney has already interpreted several times. Mr. Chavez: Mr. Chairman, I think the City Manager is also a nonlawyer. That's why there was a change of personnel latter part of the day. Now my statement is accurate, correct? It would -- you would agree that the philosophy of the Police Department should be dictated by someone with law enforcement experience? That's a fair statement? Interim Chief Orosa: Yeah. I said yes. And then I added the issue of personnel and (UNINTELLIGIBLE) budget. Mr. Chavez: Now only civil service is the one that's afforded protection under the charter, correct? Interim Chief Orosa: Yes. Mr. Chavez: Those are your words? Interim Chief Orosa: Yes, sir. City of Miami Page 224 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: With regard to unclassified positions, those positions are typically appointed positions at the discretion of the chief. Interim Chief Orosa: Yes, sir. Mr. Chavez: If there were illegal gambling machines in the street and the City Manager told you don't pick them up, what would you do? Interim Chief Orosa: That's a hypothetical question that -- basically, if they're illegal, you have to pick them up. Mr. Chavez: Irrespective of the directive of the City Manager? Interim Chief Orosa: Correct. Mr. Chavez: Now when -- Commissioner Suarez: Not irrespective -- Chair Gort: Wait, wait. Commissioner Suarez: -- of the directive; because of the directive. You said if the City Manager Mr. Chavez: I said don't pick them up. Commissioner Suarez: No. That's not what you said. That is not what you said. We can read it back, but that's not what you said. Maybe you made a mistake. You should reask the question. Mr. Chavez: I wrote the question don't pick them up. "I said -- and -- Commissioner Suarez: You may have written it that way, but that's not the way you said it. That's not the way I heard it. Mr. Chavez: Then I'll rephrase it. Commissioner Suarez: Thank you. Mr. Chavez: And the chamber will speak -- Commissioner Suarez: Or just reask it if you want. Mr. Chavez: -- for itself. I will. If there were illegal gambling machines in the street and the City Manager says don't pick them up, what would you do? Interim Chief Orosa: Pick them up because that's a illegal order. Mr. Chavez: Thank you. Now with regards to when you reassigned Officer Alvarez -- Interim Chief Orosa: Correct. Mr. Chavez: -- did you give him notice before you did that? Interim Chief Orosa: No. He's staff member; he doesn't get notice. City of Miami Page 225 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: So you would agree that staff members don't need notice prior to reassignments? Interim Chief Orosa: No. Mr. Chavez: So Roque, staff member? Interim Chief Orosa: Yes. Mr. Chavez: He didn't need notice before reassignment? Interim Chief Orosa: That's a little bit different. He's still in full command of officers; Roque's not. Mr. Chavez: Okay. Interim Chief Orosa: Okay. Mr. Chavez: So what about Perez? Interim Chief Orosa: Same thing, different. Mr. Chavez: He needed -- so the distinction is when they're not in commander of officers that you draw? Interim Chief Orosa: Well, the issue is that the chief has the sole discretion to manage the Police Department and move personnel around, depending on the needs of the Department. That's the issue. The issue with Perez, Brown, and Roque is that you are moving them around and stripping them of any authority to do their function. That's the big issue here. Mr. Chavez: Okay. So as I understand it correctly, because they were reassigned to a position of lesser responsibility, they required notice, but Mr. Alvarez, the head oflnternalAffairs at the time that you reassigned him, did not require notice? Interim Chief Orosa: No, he didn't. The same way Exposito didn't give me notice when he sent from me investigations to support services. Mr. Chavez: Did you appreciate that action on behalf of Exposito? Interim Chief Orosa: I didn't question that action because he's the boss. Mr. Chavez: But did you like it? Interim Chief Orosa: Eventually I became to like it. Mr. Chavez: Not when it happened, right? Interim Chief Orosa: No. Mr. Chavez: Thank you. Interim Chief Orosa: You're welcome. Chair Gort: Okay. Any other questions? City of Miami Page 226 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Mr. Chairman. Chair Gort: Any other witnesses? Mr. Milian: No. Commissioner Suarez: Mr. Chairman, I have a question -- Mr. Milian: Mr. Chairman, on behalf of the Manager -- Commissioner Suarez: -- for the City Attorney. Please. Question for the City Attorney. Chair Gort: Yes. Commissioner Suarez: I think we established earlier that the City Manager could not give an illegal order, is that correct? Ms. Bru: I think the City Manager cannot give an illegal order. If he does -- Commissioner Suarez: Thank you. Ms. Bru: -- I think the chief of Police -- Chair Gort: He's got a problem. Ms. Bru: -- would be well within -- Commissioner Suarez: Would you consider an order to demote -- not demote. I'm sorry. I made the mistake this time. Not demote -- an officer to be an illegal order? Ms. Bru: That's an administrative personnel order. Commissioner Suarez: But would you consider that to be a legal order? Or was it legal to order the --? Ms. Bru: Oh, yes, yes. It is within his authority. Commissioner Suarez: Thank you. Chair Gort: Any other questions? That's it. All the witnesses are taken care of? Mr. Milian: Mr. Chairman, we have no further witness to present before the Commission at this time. Chair Gort: Okey-doke. Mr. Chavez: May I present my rebuttal witnesses? Chair Gort: Yes. Mr. Milian: Mr. Chairman, are we taking a break then, bathroom break? Chair Gort: Taking a little break, yes. Mr. Milian: Yes, sir. City of Miami Page 227 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 [Later... Chair Gort: (INAUDIBLE) ready. Mr. Chavez: I would call assistant -- I'm sorry -- deputy -- assistant chief Richie Blom. Mr. Milian: With a -- asking for excusals from my colleague before I speak, I wanted to address you, Mr. Chairman and the Commissioners. We are going now into a phase of in legal terminology, I guess a surrebuttal. I would only ask this of the Commission. You have heard a great deal of testimony. You have made pointed inquiry on these matters, and they have in many cases been regurgitated repeatedly and studied and chewed over. I think it is well within the discretion of the Chairman and of the Commissioners right now to let's focus surrebuttal on very specific concise issues that may be brought up and not relitigate the entire case. Chair Gort: Gotcha. Mr. Milian: Only for the sake of efficiency and to avoid the redundancy that is not necessary. Chair Gort: My understanding, it was three minutes. Commissioner Sarnoff. Commissioner Suarez has to be out of here by midnight. Commissioner Suarez: No. I don't turn into a pumpkin, no. Mr. Chavez: I'm limited to three minutes per? Chair Gort: Yes. Commissioner Sarnoff. What's that? Vice Chair Carollo: Mr. Chairman, hold on. Chair Gort: I mean, that's what he agreed to. I mean, I didn't say that. Mr. Chavez: No, I did not agree to three minutes per -- Chair Gort: Okay. Well, go ahead. Vice Chair Carollo: Yeah. I just -- Chair Gort: Go ahead, go ahead. Vice Chair Carollo: Yeah. I just don't want to start changing the rules now and putting time limits on them. Chair Gort: Go ahead. We're not going to change the rules. Richard Blom (Police): Good evening. I'm Assistant Chief Richard Blom. Mr. Chavez: Assistant Chief you were appointed to this position? Assistant Chief Blom: Yes. Mr. Chavez: By whom? City of Miami Page 228 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Blom: Chief Exposito. Mr. Chavez: And do you -- did you -- did Chief Exposito give you instructions as to the reassignments that had been the subject of today's proceedings? Assistant Chief Blom: That's correct. He was going out of town, but prior to the e-mail going out Monday morning, he called me and told me the e-mail was going out. I knew about the e-mail, and he asked me to make sure I had the reassignments taken care of. That was Monday morning. Monday morning had a meeting here with the -- in regards to the budget in the Manager's office. And at that time during the budget meeting, the Manager called me out, and he asked me about these requested demotions and why they should be taking place. He says he didn't think he had the full explanation from Exposito, but he said two are for discipline and one was something with -- something was wrong with the numbers in the budget, and the chief had a problem with that. I said, well, yeah, that's correct. I said, but you might want to get more information because -- is that what it is? I said, yes, that's exactly what it is. So he says, okay, well, I'll call you later on this. All right. Well, after the meeting, I went back to the Department. I contacted the supervisor over Commander Roque and Commander Perez and had her come in to let her know that these gentlemen were going to be reassigned. I also contacted the commanders that they would be reassigned to. So I had the three of those people in my office. I specifically asked them -- I told them that they were going to be reassigned to you. They will continue to be commanders. I wanted them to be treated with dignity and respect and give them some duties inside commensurate with their rank. I've worked in the Department many years, and there's many jobs that you can hold -- I held them as a captain -- that you don't have to have people under your supervision to have inside duties that are commensurate with your rank. So I said, please, make sure you do that. You have plenty of things in there we can have them do. We have a lot of crime reports out there. We have a new Crystal system. There's things that they can do until we get this whole matter settled. But for now, make sure that they're treated with dignity and respect. I care about people. I care about them. I've known them a long time. I don't want people to be hurt. So I want to have them -- some type of job that they can have with dignity and respect in the office. As far as Chief Brown, I was going to meet with the Manager because he was not going to be reassigned. He would stay in his own office. So I had no need to sit down with him. The Manager gave me every indication he was going to be calling me on the demotions. Thursday morning Major Alvarez saw me in a meeting. We were going to have a meeting in the station. And he said, Chief the Manager just called me. He's going through with the demotions. He's going to call you this afternoon. "I said, really. Why this afternoon? He said, !le wants to call the three people first to let them know and then he's going to call you this afternoon. And then you're going to go ahead and do the demotions. "Well, at that time I was going to call them in and give them regular assignments, you know, more permanent assignments. I'm still waiting for that call. So that's why that happened. I just didn't want you people to think that we do things here without compassion, without respect for people; that we retaliate people -- against people or we want to hurt people and make people feel belittled. That's not what we do. Under my command, I've always tried to -- the number one thing to do is growth and development, my employees, whether they're upper staff or they're low back. I remember when the chief first took over, we rolled some people back. I tried to meet with every single one of those people to let them know that the job that they had in the Police Department now as a lieutenant or some other rank was still a valuable job, that they can still contribute to the organization. Andl wasn't going to treat them like I was treated sometimes in this organization, where they would put you in a corner and give you something meaningless to do and not want your input. I wanted their input. I said there's still room to grow. There's still things to contribute. Just because the chief doesn't want you on his staff that doesn't mean you can't contribute to this Police Department. That doesn't mean you can't walk around here with dignity and respect. Okay. So I just want to make it clear that you don't have to have people under you to have that type of dignity and respect, to have that type of a job, a commander or something of that nature. City of Miami Page 229 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Chief. Assistant Chief Blom: Sir. Mr. Chavez: Now there was also discussion throughout the day related to one of the claims associated with a plan of action for -- Assistant Chief Blom: Right. I -- Mr. Chavez: -- the overtime overages. Can you please explain that? Assistant Chief Blom: Yes. We did the ten-day plan, as the chief said, with the overtime. I really wasn't, you know, real optimistic about moving a lot of the PSTs, but I let the Manager know that we would be moving PSTs. And what we did was we just -- Mr. Chavez: Please explain what a PST is. Assistant Chief Blom: I'm sorry. Problem Solving Teams. These are guys that are actually in uniform. The nice things about the PSTs is I can move them at a moment's notice. Sometimes they get calls; they're having a problem in some district, we'll do a stakeout. I'll say, I want you guys back here at 2 in the morning. I have that flexibility with the PST team. I don't have that with the patrol guys. Patrol guys, to move their hours or their days off I have to give them a six -day notice. So when they're having a problem in a certain place, certain time, say, you guys, I want you back here 2 in the morning. And like that, they're back. So I really don't like to use those guys for anything else, except those, what I call, proactive -type details. However, since the overtime was getting bad -- we had, I think, 26 I-callouts, which is sick, people call in sick -- I said, great, okay. We had a plan, and we implement it to take the Problem Solving Team -- probably about 60 or so people -- move their hours to afternoons and midnights and have them ride around. Now do their regular job, but if there was shortage in patrol, the administrative sergeants knew to pick them. You had so many PSTs out there, so if you have people call in sick, guess what? You're not working PST today. You're coming to patrol. Mr. Chavez: Is that what we call the transfer plan? Assistant Chief Blom: Yeah, right. Mr. Chavez: TOS. Assistant Chief Blom: TOS. Mr. Chavez: Transfer plan. Assistant Chief Blom: So those folks are available so we can mitigate or limit the overtime, and that's been working very well so far, that and the limitedl-Time that we've been using. TOS is there for a reason. I'm looking for 24/7 coverage. When Chief Timoney had the tactical units, he had about 60, 65 people total. Unfortunately, that didn't cover nights and weekends. We're talking about drugs. We're talking about gangs, talking about robbers. They work nights and weekends. And so to not to have tactical operations work nights and weekends is really, you know, not doing our job. So we've increased that unit, made it more robust. And the reason we made it more robust, I want to make sure that we had at least one tactical team in each district -- north, central, and south -- everyday, on the weekends, and the weekdays so we can call and say, boy, is there a plainclothes unit working in north end? Yes, there is. South end? Yes, there is. Central? Yes, there is. Every single day. So that's what we're looking at. That's why we made it more robust. And the reason we brought them down, some of them weren't as -- Interim Chief City of Miami Page 230 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Orosa was saying some was up in CID, the FATs team, and we wanted them all under one command, you know. They're under one command, they're a lot easier to do a lot of things with. And the tactical robbery unit has been really, really effective. Robberies are down to a 40-year low, probably more than that, but we only go back 40 years. I think we went back to about 1972. Mr. Chavez: Essentially, chief has TOS been successful in reducing certain types of crime? Assistant Chief Blom: Yes. In robberies they have. And Manny Orosa's correct when he says crime was up a percent, you know. If you look at the percent we're looking at, we're looking at mostly larcenies. When we look at the robberies, they're down. And that's what they're there for, most of the robberies. And you know, that's -- they've been very successful in that endeavor. So -- and he's correct; some crimes go up. Some crimes go down. As I say, you have to look outside the numbers sometimes too. Andl think I've explained sometimes to the Commissioners that I've seen crime go up -- larcenies go up, and you know, we looked a little harder and find out, hey, guess what? They opened up a shopping mall. They opened up Midtown. Well, yeah, larcenies went up a little bit. And so we see that. We also see larcenies go down. Shoplifting's down. We start patting each other on the back. Andl look a little harder andl say hey, wait a minute. We had a shopping center just go out of business, so don't pat yourself on the back. Look outside the numbers, and that's what we've been doing. We're looking outside the numbers. So the two things I want to say is that the TOS is successful, but what I really want to get across tonight -- Commissioner Suarez, I know, you know, you've known me for many years -- that we treat our people with compassion. We're not hard with them. We're not, you know, blunt with them. And that's why I did what did. You know, ifI was being led to believe that the demotions were imminent, and when that happened, I would be able to give them permanent assignments. But the assignments I gave them, the orders I gave, they were to have a meaningful assignment and give them something commensurate with their rank. What happened with Roque the same day, I think it was August 8, I saw FMLA, Family Medical Leave Act, cross my desk, all right. So I said, not a problem. If he's requesting that, let's go ahead and process that, all right. No if ands or but, let's let this guy, you know, have his leave act. The other gentleman wants to take vacation. Fine, take vacation. But you know, at no time did I, you know, want to, mean to, try to, belittle anybody, disrespect anybody, or make anybody feel, you know, like they weren't part of this Police Department. Mr. Chavez: Thank you. Commissioner Suarez: Mr. Chairman, ifI may? Well, after Commissioner Sarnoff. Commissioner Sarnoff.. I have a question. Your heard Chief Orosa say that your department's going no direction. Would you agree with that? Assistant Chief Blom: Chief Orosa's applying for the job. Most people that apply for the job try to say this department needs to be improved; I can come here and improve it. So I don't agree with that. No. I think we're going in the right direction. One of the things we're doing too with TOS. They're working very closely with the investigations section. One thing we've done is -- we're actually tracking the clearance rates. Clearance rates are dismal in this country. Burglaries national average is about 11 percent and nobody's going to put that out 'cause that doesn't look good. Eleven percent's horrible, all right. Robberies, 24 percent, all right, clearance rate, which means 24 -- well, 1 in 4 robbers are getting caught. Nobody's ever put those numbers out. We put those numbers out on a daily basis -- oh, I'm sorry -- on a monthly basis with Com Stat, and we're putting it in our annual report, because what gets measured gets improved. We're not hiding from these numbers. I want to see where we need to improve. So, you know, if we're only catching 13 percent of the burglars, you know, we need to do better. Even though our national average, it's 11, but we're tasking ourselves. So, yeah, I think we're going in the right direction. I really do. City of Miami Page 231 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: I'll yield to all of my other Commissioners. I just want to ask one question. Can you explain, chief the difference between a robbery and a larceny? Assistant Chief Blom: Yeah. A robbery's basically taking by force, a threat offorce. If point a gun at you, you know, it's a robbery. Where a larceny, ifI sneak up behind you and l just kind of steal your purse, which I would never do, but you know, ifI did that, that would be a larceny. But robbery's more -- has a force or intent to use force, or you put fear into somebody by pointing a gun at them. That's a robbery. Vice Chair Carollo: Right. So a robbery is taking of property or whatever -- Assistant Chief Blom: Normally, gun in your face. Vice Chair Carollo: Right. -- through force, intimidation, and so forth -- Assistant Chief Blom: Yes, sir. Vice Chair Carollo: -- where theft is not. Assistant Chief Blom: Yes, sir. Vice Chair Carollo: Theft, you leave your purse there, and turn around and it's gone or --? Assistant Chief Blom: That's correct. Vice Chair Carollo: Right. So there's a difference. Robbery -- Assistant Chief Blom: Yeah. We have a lot less robberies than thefts. Thefts are much more common than robberies. Vice Chair Carollo: And robberies are -- is down 40 percent? Assistant Chief Blom: No. Robberies are down a 40 year low. Vice Chair Carollo: Forty. Assistant Chief Blom: I think every year, since 1972, we had at least 2,500 robberies, maybe 2,000 -- always over 2,000. We hit the 5, 6, and 7,000 mark probably in the '80s with the tourists robberies, and they've been coming down, but they've never seen anything under 2,000. Last year was 1,949, which is, you know, tremendous. I don't know if we can hit those numbers. We're getting real close this year. But last year we had really good numbers, and I don't know if we're going to match it. I look every single morning at 6 o'clock at the stats, and they're close to what they were last year, so I'm very happy about that because those are egregious crimes when you put a gun in somebody's face and take their stuff. So not only do I want to see robberies go down, at the same time we want to see the clearances go up, because that's what's going to help the robberies go down. You get these guys, you put them in jail, and you try to keep them there. So the clearances are important too. So it's a team effort. Like the chief was saying, we had this three prong approach with patrol that goes out there and does the report. We have TOS who looks for the bad guys. When they catch them, they bring them over to the investigators who interview them and prepare them for court. Hopefully, they can do a good enough job to keep them there so all of sudden this robber that was doing two robberies a week is in jail and all of a City of Miami Page 232 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 sudden the robberies are going down and the clearances are going up. That's what we're looking for. But we have to put it out there to measure it. I don't know of any other department that really puts those clearance rates out. They want to hide them, or they don't want to show them. But we're not going to improve unless we show it. So, yeah, I think we're going in the right direction. Let's bring crime down and let's bring clearances up. However dismal it might look, let's put it out there. Vice Chair Carollo: Thank you, chief. And again, my main point I wanted to get across is that robbery, you know, is with violence, with force. It's a violent crime, where a larceny and so forth is not, you know, with violence, and therefore, violent crimes have gone down, even though overall crimes may be up 1 percent. Assistant Chief Blom: That's correct. Yes, sir. Commissioner Suarez: Mr. Chairman, ifI may? Chair Gort: Yes. Commissioner Suarez: Thank you, Mr. Chairman. Chief Bloom [sic], good to see you. Assistant Chief Blom: Commissioner. Commissioner Suarez: I do -- I have known you for a long time. Assistant Chief Blom: Sir. Commissioner Suarez: Andl do know you to be a person of compassion. I think you're -- you are someone who has a very high moral character -- Assistant Chief Blom: Thank you, sir. Commissioner Suarez: -- in the time that I've dealt with you. I just have a few questions for you. You spoke about a ten -step plan to deal with overtime. Assistant Chief Blom: I'm sorry? Commissioner Suarez: I think you spoke -- Assistant Chief Blom: No. It was a ten-day plan. It was basically, they have to call in ten days ahead of time because, you know -- Commissioner Suarez: A ten-day plan. I'm sorry. Assistant Chief Blom: Yeah, ten-day plan. And the chief was explaining that before that normally we have to given a six -day notice. So we've been asking them to let us know ten days ahead of time when they're going to be taking some time off so we can adjust days and duty hours. What's happened with that plan was we found out that boy, okay, ifI tell you you're going to be working next Saturday, well, next Saturday the guy calls in sick. So we put that plan in place. It worked for some -- sometime, but it wasn't having the effect we wanted. So we went to the TOS plan to get these PST to help out, because the numbers are really getting low. I think it was 54 last week. I think it's 64 this week. So it's at a critical level. Commissioner Suarez: Thank you. Assistant Chief Blom: Yes, sir. City of Miami Page 233 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: I believe I gave your department that proclamation for the reduction in robberies, didn't I? Assistant Chief Blom: Yes, you did. Thank you. Chair Gort: Yes. Commissioner Suarez: You're welcome. Assistant Chief Blom: And let me tell you, the guys appreciate it when they come up here and we're recognized, you know, by the City fathers. They really are. It's very special to them. Commissioner Suarez: Chief could you do me a favor and provide me a copy of the ten-day plan? Assistant Chief Blom: Sure. The ten-day plan, it's going to be basically an e-mail that I have an e-mail to my administrative sergeants directing them to make sure people put in for ten days ahead of time. Commissioner Suarez: You didn't bring a copy of that e-mail to this hearing? Assistant Chief Blom: No. Commissioner Suarez: You didn't -- okay. Assistant Chief Blom: Well, I'll check. Commissioner Suarez: The reason why I ask -- and -- 'cause, again, we have kind of jumped around. But l believe the Manager's directive to the chief was specifically I'm requesting that you prepare an immediate plan of action to drastically reduce overtime costs. "You guys have referred to that as the ten-day plan. Assistant Chief Blom: Yes. We actually do -- Mr. Chavez: If may clarify. Can I clarify briefly? I think -- chief was the ten-day plan in place before July of 2011? Assistant Chief Blom: Yeah. The ten-day -- been in place for a while. Mr. Chavez: And then we had the TOS transfer plan. Assistant Chief Blom: And then the TOS transfer plan. Mr. Chavez: That that was put in place in response to the City Manager's -- Assistant Chief Blom: To the Manager's, yes. Mr. Chavez: -- directive of July 2011, correct? Assistant Chief Blom: That's correct. Mr. Chavez: Please clam that. Commissioner Suarez: Which one is that one -- I'm sorry -- the last one that you clarified? City of Miami Page 234 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Blom: The TOS transfer plan. Commissioner Suarez: Can you furnish me a copy of that plan? Assistant Chief Blom: It's around here. I don't have it with me. Mr. Chavez: It's actually attached to the charging documents. It is -- Commissioner Suarez: Is it -- well, I guess -- is it your contention that the first page of the charging document where -- Mr. Chavez: It is the e-mail that -- first of all, the first page says from Johnny Martinez to Ortiz Javier. I guess they forwarded him that e-mail or a copy -- Ms. Thompson: Excuse me. Mr. Chavez: -- of the e-mail received from Chief Exposito to Johnny Martinez where he indicates that he's developed the plan of action consistent -- Chair Gort: Excuse me. We got to stop. We got to change the time. Mr. Chavez: Okay. Ms. Thompson: Our system goes down at -- Commissioner Suarez: Sorry. Mr. Chavez: Okay. Ms. Thompson: This is the bewitching hour. Commissioner Suarez: I thought he was saying I turn into a pumpkin at midnight. Chair Gort: Yep. Mr. Chavez: And if you can clam that when we start. Assistant Chief Blom: I'm sorry. Commissioner Suarez: Yeah. Assistant Chief Blom: Have we not started yet? Ms. Thompson: We're just -- our system shuts down at 12 and -- Assistant Chief Blom: Well, Exposito birthday's at 12: 01. Happy birthday, Mike. [Later... Commissioner Suarez: (INAUDIBLE) essentially the e-mail response was the plan. Is that your contention? Assistant Chief Blom: Yes, sir. Mr. Chavez: Yeah. And you know, I'm not under oath here, but -- City of Miami Page 235 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: Well -- Mr. Chavez: -- the recommendation was made with Mr. Martinez (UNINTET,TIGIBT,F). Commissioner Suarez: Well, then, I'll ask him and let him answer since he's under oath. Assistant Chief Blom: I'm sorry. I couldn't hear you, Commissioner. Commissioner Suarez: Your counsel basically restated testimony given earlier, I guess, where he said that the e-mail response to the Manager's directive, that was the plan. Is that your understanding? Assistant Chief Blom: Yes, sir. Commissioner Suarez: I mean, the only trouble I'm having with this is that, you know, our chief is well compensated for the work that he does. He's -- I think he makes close to $300, 000 a year, if I'm not mistaken. Is that correct? Assistant Chief Blom: No, no. Commissioner Suarez: No? Assistant Chief Blom: No, sir. Commissioner Suarez: How much does the chief make? It's public record, I suppose. Assistant Chief Blom: It is. You'd probably have to ask him. Commissioner Suarez: Maybe low 200s. I'm sorry. Assistant Chief Blom: No. He doesn't buy me lunch, so I know it can't be that much. Commissioner Suarez: He doesn't make more than 200,000? Assistant Chief Blom: I don't think so. Mr. Chavez: He's my next witness, and he can speak to that. Commissioner Suarez: Okay. I'm sorry? Unidentified Speaker: One ninety-six. Commissioner Suarez: One ninety-six. I'm sorry. He makes 196. Assistant Chief Blom: All right. That's not 300 -- Commissioner Suarez: But that's still a pretty healthy salary. Assistant Chief Blom: -- and it's not 200. Commissioner Suarez: You're right. You're absolutely right. I stand corrected. It's not 300 and it's not low 200s. It's high IOOs. My bad. Is this the kind of work product that a reasonable person can expect when asked a question about preparing a plan for someone who is the chief of a department such as the City ofMiami? City ofMiami Page 236 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Blom: Again, is he looking for something, you know, with dots and colors or, you know, markings and graphs on it, or is he looking for something that's in compliance with his wishes and to get the desired result. And if the answer is the second one where he's looking for something to be compliant with his wishes and get the desired result, this document, you know, should suffice, sir. Commissioner Suarez: Andl think that is the critical question, soI really appreciate you putting it -- articulating it, because I think you articulated it well. Assistant Chief Blom: Thank you, sir. Commissioner Suarez: That's -- oh, I guess I have one last question. I'm sorry. Is the determination of whether the Department, the City ofMiami Department is going in the right direction or the wrong direction. Is that ultimately the decision of the police chief or is that ultimately the decision to be made by the City Manager? Assistant Chief Blom: If it's going in the right direction, it's not a decision. It's -- you know, basically, it's a barometer. And we take a barometer from, you know, the things that we're doing on the street. And again, it goes outside the numbers. The numbers look pretty good. But think the chief can expound on some of the awards we got this year. Now, in fact, I'm going to talk about just two quick ones. The LEO (Law Enforcement Officers) Awards, we actually in the County, this is the first time since I could remember that we got these two LEO Awards, one for patrol, best in patrol, which is uniform patrol, and one for investigations. And there was only six categories. We were recommended in four, and we actually won two. So we're very proud of those awards. And these are, you know, the work that the men and women are doing. The most important award we got was one from International Association of Chiefs of Police in October, which is a community policing award, and that encompasses a lot of things as well. We're having a community policing conference here. It's called a POP (Problem Oriented Policing) conference. It's coming in October. POP stands for Problem Oriented Policing. Herman Goldstein, the father of community policing, is going to be here. There were 64 entrants in that contest, if you will, to see the best community policing that's being done and, you know, examples of it. So we have to give a full presentation. We had to write a paper, probably over 10,000 words, on some of the things we did. We submitted three papers. We got knocked out on two, but one is a finalist in the final seven. So Herman Goldstein, the father of community policing, will be down here in October with the chief and seven other chiefs from seven other departments around not just the country, around the world to present these seven projects. And this is what I use as a barometer, not just the numbers, but things that are outside the numbers. So it's subjective. It's not up to the Manager. It's not up to me. It's not up to the chief. It's really up to the citizens and, you know, looking and seeing what we're doing. That's really the barometer if we're going in the right direction. Commissioner Suarez: Thank you. And don't forget about my proclamation. That was another one. Assistant Chief Blom: Yes, sir. Commissioner Suarez: I think there was two, actually. Assistant Chief Blom: And things like -- well -- Commissioner Suarez: It wasn't only the robbery. It was on another -- Assistant Chief Blom: Right. Well, things like that -- City ofMiami Page 237 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Suarez: -- ttatistical category. Assistant Chief Blom: -- the recognition the guys get just prompt them to continue to do it. And sometimes they think that they're not appreciated. And when they see that, you know, that they're getting an award, some kind of recognition for the work that they do, it really goes a long way to continue and to -- it makes our job a lot easier when we're recognized. But -- Commissioner Suarez: And you're absolutely right. I didn't ask the question very artfully. Whether or not the Police Department is going in the right direction or wrong direction is really an opinion. It's not a particular -- But if the City Manager decided that the Department was going in the wrong direction and wanted to make changes, wouldn't the police chief be bound by whatever changes the City Manager wanted to make for the Department? Assistant Chief Blom: Ultimately you're bound. But you know, the reason we're here -- Commissioner Suarez: What was that? What -- Assistant Chief Blom: Ultimately, yes, sir. Commissioner Suarez: Ultimately you're bound. Assistant Chief Blom: Ultimately you're bound. Commissioner Suarez: You don't need to expand on that any further. Assistant Chief Blom: Yes. I'd like to. Commissioner Suarez: Well, I didn't ask you to. Assistant Chief Blom: Okay. I understand that. Commissioner Suarez: I just asked you a very direct question, so I just wanted a very direct answer. That's all. Assistant Chief Blom: You got it. Yes, sir. Commissioner Suarez: Thank you. Mr. Chavez: Mr. Chairman. Would you like to expand on that answer? Assistant Chief Blom: I -- he told me he didn't like me to, so -- Commissioner Suarez: If anybody else wants him to expand, that's fine with me. Commissioner Sarnoff. I have a different question. In 2010I know I went to something with the chief. He was voted the something best. It was with the chief of Police. Assistant Chief Blom: It was IACP (International Association of Chiefs of Police). Commissioner Sarnoff. What was that award he got? Assistant Chief Blom: You went to -- Commissioner Sarnoff. What was the award your department got? City of Miami Page 238 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Blom: Yeah. It was -- we have a monthly dinner, IACP, and it's the Police Departments, all of them here in Dade County, Dade County chiefs, plus the Feds, federal departments and state departments. And every month they find somebody in some department worthy of the award, and this year we were actually -- well, last year when you were there, we actually won it twice, which is another really prestigious honor to be awarded that, you know, two times. Andl think we should have gotten it more than two times for some of the work we've done. But I have to say that the awards that I saw this year for Miami Beach, Hialeah, the County, and some of the other Police Departments, these guys do a really good job. I mean, we're in good company out there. But we just happen to get those two for the year, which is good. Two out of twelve months isn't bad. And what they did was really some fine work. One was -- well, it was a life-saving award. Commissioner Sarnoff.. Did you get them in the past? Assistant Chief Blom: We didn't really get nominated in the past. That was the problem. In fact, when I first went to the LEO Awards last year, when I first got promoted by Chief Exposito, we went there and we sat there and there's this book they give you. And these are all the categories, the eight categories, and you're looking for Miami Police, and then we were only in one category, and we didn't win. But we're in one category. So out of eight, just one nomination. And then we did some research and found out we weren't being nominated. Well, the commendations that I see coming across my desk every day, I'm saying, how could this be. These guys are doing really good work. Let's take a little bit of time, read these things, call these guys in, find out more about it, and let's put some nominations in there. So I promised the chief we would never be embarrassed like that. I mean, it was the first month in office. So I said it wasn't going to happen again. These guys are doing good enough work. So we put some nominations in there that were worthy. And you know, out of all the nominations we put in -- I probably put in 17 -- they vet those, and we got four in four categories, and we had two winners. But when we sat there at the dinner and you looked through the book, you saw, you know, Miami Police, Miami Police, Miami Police, Miami Police four times. You know, that's where it should be. We're a large department. We have some good men and women here and civilians. And you know to just not have them recognized, it makes you feel small. So I was very happy with that. And again, that's a barometer of where we're going, you know, and why we're moving forward. But again, you know, hopefully, what I try to do in the Department is I try to have my demeanor contagious for everybody else. Again, treat people with dignity and respect, try to grow and development your subordinates. That's your job. Your main job is to grow and develop the people. And again, when you get rolled back off the chief's staff that doesn't mean you can't grow and develop. That doesn't mean we don't like you. That doesn't mean you're not valuable and that doesn't mean we're going to disrespect you. You're still part of the family. We're still going to give you a function to do that's important, and you'll still be able to grow in that position. Chair Gort: That's it. Assistant Chief Blom: That's it. Commissioner Spence -Jones: I'm not going to be that long. Chief I just want to ask you, earlier the interim chief mentioned Herbello and Castro and somebody else that were demoted. Assistant Chief Blom: Yes. Commissioner Spence -Jones: Okay. And I'm assuming that's under this particular leadership? Assistant Chief Blom: Yeah. Commissioner Spence -Jones: And why were they demoted? I mean, did it actually get signed off City of Miami Page 239 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 by the -- not this City Manager, but another City Manager? Assistant Chief Blom: Yeah. The chief demoted them for his cause, but he didn't share that with me. The one thing about Castro, I'll tell you, is that -- I didn't get a chance to talk to him about his demotion because he had -- we sent him to the FBI (Federal Bureau of Investigations) academy. Commissioner Spence -Jones: Oh, okay. Assistant Chief Blom: So what I'm saying is that although he was rolled back to lieutenant, we didn't say, hey, guess what, you're rolled back to lieutenant and you're not going to the FBI academy. That's a three-month academy. It's a prestigious academy. Commissioner Spence -Jones: Yeah. Assistant Chief Blom: He's done nothing egregious that he can't grow in this department. The chief had his reasons for not wanting him on his private or personal staff -- Commissioner Spence -Jones: Oh, so these people were on the personal staff? Assistant Chief Blom: Well, he was on his command staff. Commissioner Spence -Jones: Okay. Assistant Chief Blom: This gentleman, Castro. Commissioner Spence -Jones: So was Herbello? Assistant Chief Blom: And him too, yeah. Commissioner Spence -Jones: Okay. Assistant Chief Blom: But in Castro's case, he was slated to go to the FBI academy. We didn't say, wait a minute. He just got rolled back. Commissioner Spence -Jones: Right. Assistant Chief Blom: He's not going anywhere. Commissioner Spence -Jones: Right. Assistant Chief Blom: Come back here. No. Go to the FBI academy. It's a three-month academy. And you know, we want you to grow and develop. You're still part of the team. He's part of the family. Commissioner Spence -Jones: Right. And I'm -- again, the chief has every right to really demote who he feels he needs to demote. I mean, I'm assuming that's why he would bring it to the City Manager and I'm assuming get signed off, if that's the case, or at least run it by him. But I just was curious as to -- the word that's killing me tonight in this -- I'm having a very difficult time with is -- most people know me, that I'm pro -City employee, and I'll always fight for the little guy. That's just who I've been since I've been on the dais. And when I hear stories of retaliation in any kind of -- I'm just -- and you and I haven't had a chance to meet, and you seem like you have a wonderful, wonderful heart, spirit, and everything that you say probably is true. But when I hear City employees get up here and, literally, they're afraid to really even communicate, you know, what -- you know, out of fear, you know, that if they say something even here, you know, City of Miami Page 240 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 where this should be a safe place for them to communicate, that, you know, something further is going to even happen to them, and I'm concerned about that. And -- you know, so these other three that were demoted, that were a part of you know, the chiefs existence over the last two years, I'm assuming -- I guess your response to me is that he demoted them because he felt like he didn't want to have them -- Assistant Chief Blom: It was for cause. Some of those guys actually worked for me, and I just don't feel comfortable telling you all the things that they did or did not do. Commissioner Spence -Jones: Yeah. I don't want you to. Assistant Chief Blom: But that was for cause. Commissioner Spence -Jones: Okay. Assistant Chief Blom: And again -- Commissioner Spence -Jones: But -- so -- but if you demoted them, did you go to the City Manager for approval on those? I'm just curious. Assistant Chief Blom: I didn't. The -- I'd have to ask the chief on that. Commissioner Spence -Jones: Chief if he did. Like why was -- I just was curious as to -- is that the -- I'm assuming that's the process, right? Assistant Chief Blom: He would put paperwork in to that effect. Commissioner Spence -Jones: Okay. Assistant Chief Blom: I'm not sure if he personally asked the Manager about it. Commissioner Spence -Jones: But he wasn't that -- it was a different Manager. Assistant Chief Blom: Well, not that Manager. But I'm not even sure he would personally asked the City Manager, whoever that might be. They might just do the paperwork and let him know that I'm going to make some personnel actions and take those actions. What try to do is to make sure that, you know, again, that these people aren't -- Commissioner Spence -Jones: Okay. Assistant Chief Blom: -- retaliated against or anything like that. Commissioner Spence -Jones: Okay. That was my only question. Mr. Milian: May I? Chair Gort: Yeah. Mr. Milian: Chief you currently hold the position of chief in the Department? Assistant Chief Blom: Assistant chief sir. Mr. Milian: And you came back from retirement after leaving the Department as a captain, correct? City of Miami Page 241 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Blom: Yes, sir. Mr. Milian: And isn't it true that Chief Exposito is the one who brought you back and put you back on the payroll? Assistant Chief Blom: Yes, sir. Mr. Milian: And you still retained your pension benefits that you're getting -from the City of Miami, isn't that correct? Assistant Chief Blom: Yes, sir. Mr. Milian: And a change in leadership right now in the Department could also imperil your position to continue as an assistant chief isn't that true? Assistant Chief Blom: Yes, sir. Mr. Milian: Now, chief let me ask you this. We agree that law enforcement police departments are paramilitary organizations, correct? Assistant Chief Blom: Yes, sir. Mr. Milian: And discipline is paramount to running a paramilitary organization, correct? Assistant Chief Blom: That's correct. Mr. Milian: Isn't it also true that the offense of insubordination is extremely serious in any kind of paramilitary organization? Assistant Chief Blom: Yes, sir. Mr. Milian: The willful disobeyance [sic] of an order can lead to the loss of life. Assistant Chief Blom: The willful disobeyance [sic] of an order, yes, sir. Mr. Milian: Well, you would agree with me that any lawful order that is given by a superior officer -- a reasonable lawful order must be obeyed by a subordinate? Assistant Chief Blom: Reasonable lawful order, yes, sir. Mr. Milian: Okay. In this particular case, you're not aware of any memos challenging the reasonableness or the lawfulness of the order given by the City Manager, are you? Assistant Chief Blom: I'm not aware of any order given by the City Manager, sir. Mr. Milian: Okay. But you're not aware of any defiance or any claim that the orders given by the City Manager were either unlawful or unreasonable, isn't that true? Assistant Chief Blom: I didn't see any order by the City Manager, sir. Mr. Milian: Okay. But are you aware -- my question is very specific. Assistant Chief Blom: Okay. Mr. Milian: You are not aware in your capacity as an assistant chief, appointed by Chief City of Miami Page 242 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Exposito, brought back from retirement and put on salary, of any order, any memorandum challenging the lawfulness or the reasonableness of the orders of the City Manager to the chief of Police? Assistant Chief Blom: No, sir, I'm not aware of that. Mr. Milian: As a matter offact, isn't it also true, chief that the chain of command in this organization goes from the chief of Police to the City Manager? Assistant Chief Blom: Yes, sir. Mr. Milian: And as a matter offact, as embodied in the Charter of this City, it says that subject to the supervision and control of the City Manager, the police chief carries out his duties. Are you aware of that? Assistant Chief Blom: Yes, sir. Mr. Milian: Okay. And you agree with that, correct? Assistant Chief Blom: Yes, sir. It's the Charter. Mr. Milian: So earlier today when you were saying about the direction of the Department, if they're going in the right direction, you would agree that it's under the supervision and control of the City Manager which direction the Police Department is going, correct? Assistant Chief Blom: Not necessarily, sir. Mr. Milian: Okay. Assistant Chief Blom: It's not under -- Mr. Milian: Well, let me ask you this. It's a yes or no question. You don't agree with that. So you're saying that -- Assistant Chief Blom: I'm sorry. Repeat the question. Mr. Milian: Well, you said earlier today that the direction the Department goes, you know, is not a matter for the City Manager. Did hear you correctly? Assistant Chief Blom: No. You might have not heard me correctly. I think was talking about -- they asked, you know -- Francis -- Commissioner Suarez was talking about how the -- how we measured if we were going forward. Andl said, well, it's not really up to the City Manager; it's really up to the citizens, the Police Department -- let me finish -- and you know, we weren't challenging the City Manager. We're saying, but the way we measure how we're going forward is measured by crime, clearance rates, awards, citizen satisfaction, morale, things outside the numbers. Mr. Milian: Okay. Let me ask you this, chief. Assistant Chief Blom: Yes, sir. Mr. Milian: You've been in law enforcement for a while, haven't you? Assistant Chief Blom: Yes, sir. City of Miami Page 243 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Isn't it true that you supervise individuals, correct? Assistant Chief Blom: Yes, sir. Mr. Milian: Okay. Do we allow the standards for our subordinates to be established by some nebulous standard outside of the organization, or is it up to the supervisor to set those standards and make sure that those standards are complied with by the subordinate? Assistant Chief Blom: Well, we have standards. We have written standards. Mr. Milian: That's not my question, chief. Isn't it up to the supervisor to ensure that the standards that the supervisor has established with that subordinate are complied by by the subordinate? Assistant Chief Blom: The standards -- the written standards, you mean, or the standards that the supervisor --? Mr. Milian: Any task, any orders that have to be accomplished on a day-to-day basis for fulfilling the obligations in the mission of the organization. The supervisor is in a position to establish those standards and to demand that that subordinate complete and accomplish those standards. Wouldn't you agree with that? Assistant Chief Blom: Yes, within the departmental orders or -- Mr. Milian: But, chief we don't allow an individual police officer to say, you know what; I don't want to patrol Allapattah today. Assistant Chief Blom: Okay. Let's clam it by saying lawful, legal standards. Mr. Milian: Chief I'm going to clam it for you. Assistant Chief Blom: Okay. Because you're just saying that the supervisor says these standards, you have to obey them. Mr. Milian: Chief, if you don't understand -- Assistant Chief Blom: Lawful, legal. The standards -- Chair Gort: Excuse me. Assistant Chief Blom: -- we go by are in the departmental orders. Chair Gort: Excuse me. Assistant Chief Blom: I'm sorry. Chair Gort: Ask your question, get an answer. I don't want any debate here. Mr. Milian: Chief the question is very simple. It doesn't call for an explanation. Assistant Chief Blom: It's not that simple. Mr. Milian: Isn't it -- Assistant Chief Blom: If it was that simple, I would have answered yes or no. City of Miami Page 244 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Well, chief you're arguing with me and you're not answering the question. The question -- Assistant Chief Blom: Okay. Mr. Milian: -- I'll restate it. I'll restate the question. Commissioner Sarnoff. Let me say something, Mr. Milian. Chair Gort: Yeah. Commissioner Sarnoff. 'Cause I'm listening to this, and I'm sort of in disbelief that nobody's making an objection. Your question calls for speculation. The question doesn't lay a proper predicate and your question is vague. And you can partly quote and quote the Charter all you want, and a good lawyer sort of does that. But at 12: 20 in the evening [sic], I'm not sure what you're accomplishing. Mr. Milian: Well, I'm accomplishing something very simple, if you're asking me for a response. It's very clear that this department is subject to the supervision and control of the City Manager. And he asked -- Commissioner Sarnoff. And he's either acknowledged that or he has not acknowledged that. Mr. Milian: Commissioner, look, I didn't interrupt, andl didn't object when the chief went on a narrative -- Commissioner Sarnoff. I got what you're saying. But you know what; at 12: 20, I'm going to start playing lawyer. Mr. Milian: Well, remember thatl was the one who initially came before the Commission today when we were entering in this surrebuttal period of time after -- close to midnight and said, look, you have the authority to limit the scope, and we went on for a significant period of time, allowing the chief to give a narrative and basically an endorsement of what the Department has been doing. But the issues here that I'm focusing on have to do with two things, and only two things: Insubordination, supervision and control of the Department, and the proper chain of command. Commissioner Sarnoff. But you're not giving a hypothetical that gives him sufficient data and sufficient information to form an opinion, and any judge in the United States would sustain that objection. Mr. Milian: Well, Commissioner, I beg to der. Commissioner Sarnoff. And -- okay, and I get that. And you know, a slick lawyer can do a lot of slick things. Mr. Milian: I'm not a slick lawyer, but I'm not a potted plant here. And having heard the gentleman speak for an extensive period of time, I think have a right to inquire about the standards that are applied throughout the entire Police Department and must be applied to the leadership of that department. Commissioner Sarnoff. Why don't you ask him the question if inevitably every decision must be visited upon by the City Manager? And if he opines that, great. And if he doesn't, move on. City of Miami Page 245 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: I don't think it's a question of opinion, Mr. -- Commissioner. The question calls for either a yes or no. And the gentleman's already acknowledged that under the Charter, the Department is under the supervision and control of the City Manager, and that's stated. I think he agreed with that. Assistant Chief Blom: Yes, sir. Mr. Milian: My next question has to do with individual police officers have to abide by the supervision and control of their supervisors. Is that right? Assistant Chief Blom: Yeah. What I said was -- the way you made it -- made the question, I said yes, as long as those orders are within the departmental rules and regulations and they're lawful. Mr. Milian: Are you aware in this particular case -- Assistant Chief Blom: What case is that? Mr. Milian: The case of Chief Exposito and his termination and suspension at this point in time . -- that there were any unlawful orders or unreasonable orders issued to the chief? Assistant Chief Blom: I've answered that. I said there were no orders, period. None. Mr. Milian: Okay. Well, are you --? Assistant Chief Blom: So lawful, unlawful, whatever, there were no orders given. Mr. Milian: Did you hear the testimony earlier today? Mr. Chavez: Mr. Chairman. Chair Gort: Excuse me. Hold it. Mr. Chavez: Chairman, I'd like to -- Assistant Chief Blom: I'm just telling you. Chair Gort: Hold it. Assistant Chief Blom: You asked me a question; I told you. Chair Gort: Let's hold. Mr. Chavez: I would like to lodge an objection. Chair Gort: It's 12: 22. I think we're all getting a little upset. Andl think we need to go to the questions, answer, and -- because we can be here until about 4 or 5 in the morning, which I don't think many of us would want to do that. Mr. Chavez: Andl thinkl was rather brief -- Chair Gort: Okay. Mr. Chavez: -- with this witness, Mr. Chairman. Chair Gort: You were brief? City of Miami Page 246 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: And ulti -- I thinkl was ultimately. I had three, four questions. Chair Gort: Okay. Mr. Chavez: And ultimately, I was admonished from re -litigating other issues, and this cross-examination has gone way beyond the scope of my initial direct of this gentleman. Chair Gort: I think we've given about equal time to everybody. I think I've been very fair and allowed everyone the equal time. But it's getting to a time right now where the tempers are running a little kind of bad like, okay. Question, answer, specific. No argumental [sic], please. Mr. Milian: Would you agree with me that the City Manager has it within his power to supervise and control all of the actions that the police chief takes on a day-to-day basis of that department? Assistant Chief Blom: Yes, sir. Mr. Milian: Okay. Now you mentioned earlier today when you were talking to Commissioner Suarez that there was a ten-day plan. Is that correct? Assistant Chief Blom: That's correct. Mr. Milian: All right. Isn't it true that a ten-day plan would violate the collective bargaining agreement that the Fraternal Order of Police has with the City ofMiami Police? Assistant Chief Blom: Yes, sir. Mr. Milian: Okay. Now you also referred when you were talking to opposing counsel regarding a plan to reduce overtime. Assistant Chief Blom: Yes. Mr. Milian: Now have you seen any plan, any plan prepared by any person that lays out specific steps, point by point, in the form of a memoranda or any other professional document to show that the orders of the Manager to reduce the overtime has been prepared? And if you have that document, would you please make it available to us? Assistant Chief Blom: I don't have the document. But as I said to Commissioner Suarez, the e-mail that we sent complies -- Chair Gort: With the document. Assistant Chief Blom: -- with the Manager's request and also furnishes him with the solution to the overtime. And again, we don't have any graphs or anything like that. What we have is we have department schedules. Andl mean, I don't have them with me, but we have department schedules. And when these people and the PSTs are needed for overtime, they're called because they're on those particular shifts. Now do I have graphs and charts for you? No. I can come up with P-sheets or payroll sheets or present sheets. Mr. Milian: Excuse me. Assistant Chief Blom: Okay. Mr. Milian: Chief Blom, you're not being responsive to the question. Is the answer that it is no, City ofMiami Page 247 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 you do not have that plan? Assistant Chief Blom: I do not have that plan in front of me. Yes, I have the e-mail. Mr. Milian: Okay. Assistant Chief Blom: It says we've -- Mr. Milian: Well, I have the e-mail also. Assistant Chief Blom: Okay. Mr. Milian: Andl would like you to tell me if it's appropriate staff work in a police department to e-mail a justification for why overtime is not being reduced versus a plan? Staff work being prepared -- Assistant Chief Blom: No. We weren't -- Mr. Milian: -- by a member of the staff? Assistant Chief Blom: -- asked for a justification why overtime wasn't being reduced. Mr. Milian: Let me finish the question, chief. Chair Gort: Excuse me. Assistant Chief Blom: Okay. Mr. Milian: Is it appropriate staff work to e-mail a justification for why overtime is not being reduced instead of presenting an action plan by a staff officer? Assistant Chief Blom: I think we did both. Mr. Milian: Okay. Where is the action plan? Assistant Chief Blom: It's here. We said we were going to go ahead and make personnel transfer changes. Mr. Milian: Okay. That's the action plan? Chair Gort: My understanding, that's the action plan. That's the answer. Mr. Milian: Okay. And do you think that that's adequate? Assistant Chief Blom: Yes. In fact, when I talked to the Manager, he thought it was quite adequate. We've talked about it. I told him what we were doing. He was quite satisfied with it, andl showed him the results. Mr. Milian: You have told us here today, you have gone on and elaborated and praised the Department as it's being run right now, but you would agree with me that the actual issue before this Commission right now is the issue of insubordination by the Chief, correct? Assistant Chief Blom: That's correct. Mr. Milian: And you are not a witness, and you did not participate in the communications City of Miami Page 248 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 directly between the Chief and the City Manager. Would you agree with that as well? Assistant Chief Blom: Well, I'm privy to him. I see them. I can read. Mr. Milian: Let me ask you. You were not involved in the direct communications between the Chief and the City Manager. Isn't that correct? Assistant Chief Blom: That's correct. Mr. Milian: All right. And also want to ask you a question, because you said that the Department's image is good and you praised it quite a bit. Do you think an increase in the last years in the homicides is a good sign for what the Department is doing? Assistant Chief Blom: No, no. What I -- I'm sorry? Mr. Milian: Is it a good sign of what the Department is doing? Is that something that you think is praiseworthy? Assistant Chief Blom: What did you say? Start with the question -- beginning of the question. Mr. Milian: Okay. The increase in homicides in the last two years -- Assistant Chief Blom: No, no, no, no. You said something about the Department's image. Please repeat that. Mr. Milian: Well, you were speaking about the good image that the Department has in this community, and you talked about crime. And you specifically talked to several of the Commissioners about crime rate, and you -- Assistant Chief Blom: But let me stop you there. Mr. Milian: No. Let me finish the question, because you asked me to repeat it. Mr. Chavez: Mr. Chairman, I believe the witness is entitled to answer the question. Chair Gort: Excuse me. Wait a minute. Let him finish the question; let him answer it. Go ahead. Mr. Chavez: This is also argumentative. Mr. Milian: The question is -- Assistant Chief Blom: Okay. Mr. Chavez: Badgering the witness. Chair Gort: Okay. Mr. Milian: The question is simple. The question is, does an increase in homicide in the last two years good for the image of the Police Department and the City ofMiami? Assistant Chief Blom: Increase in any crime is never good for any city. Mr. Milian: Okay. So the answer would be no? City ofMiami Page 249 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Blom: Well, the answer would be an increase in any crime is never good for any city. Chair Gort: Okay, the answer is no. Mr. Milian: The answer is no. Chair Gort: Yes. Okay. Mr. Milian: Let me ask you a question. The spate of shootings that have occurred under the watch of Chief Exposito, is that a good sign for the image of the Department in the community at large? Assistant Chief Blom: There's, you know, many shootings around. If you look at the national shootings this year or last year -- Mr. Milian: Chief that calls for a yes or no answer. Assistant Chief Blom: -- they're up more -- are you talking about policemen being shot? Mr. Milian: The Chairman specifically -- Assistant Chief Blom: Are you talking about policemen being shot, because you said shootings? Chair Gort: Excuse me. Assistant Chief Blom: We've had policemen shot. Is that what you're asking about? Mr. Milian: The Chairman specifically told you not to engage in debates, and you're giving us an explanation. But the answer -- Assistant Chief Blom: Okay. I'm just asking. You said shootings. Mr. Milian: The answer is quite clear. The number of shootings in the Department under the tenure of Chief Exposito, do you think that's a good image builder for the Police Department? Assistant Chief Blom: No, it's not a good image builder. Mr. Milian: Okay. And now let me ask you this question. You agree with me that insubordination is intolerable in a paramilitary organization. Is that correct? Commissioner Sarnoff. Asked and answered. Mr. Chavez: Object to the form. Asked and answered. Chair Gort: Yeah. He answered already. Commissioner Sarnoff. Asked and answered. Move on. Mr. Milian: Well, I'm trying, Commissioner. Commissioner Sarnoff. You've asked that question five times. You have asked that question five times. Mr. Milian: But, Commissioner, don't raise your voice at me, because I have been very City of Miami Page 250 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 respectful of every member of this Commission, andl have been very respectful -- Commissioner Sarnoff.. Well, I'll tell you what, at 12: 20 in the evening [sic], I am going to raise my voice, and I'm not going to listen to a lawyer ask the same question five times. Mr. Milian: Well, Commissioner, if you allow me to follow up -- Commissioner Sarnoff.. Because you're going to get the same answer five times. Mr. Milian: Well, Commissioner, I don't appreciate your tone. I think it's disrespectful to me and the members of the community. Commissioner Sarnoff.. I think you're being disrespectful -- Chair Gort: Okay, hold it, hold it, hold it, hold it. Mr. Milian: Well, I -- Commissioner Sarnoff.. -- in asking the question five times. Mr. Milian: -- am trying to ask my questions on matters that were covered on surrebuttal by defense counsel. Commissioner Sarnoff.. Well, I have no idea why the Chair lets you go on. That's his decision. Mr. Milian: Well, I guess it's his decision. Commissioner Sarnoff.. But you're asking the same -- Chair Gort: Gentlemen? Commissioner Sarno:I -- question five times. Mr. Milian: Well, if you allow me to finish my question, you'll see where I'm going. Commissioner Sarnoff.. I wouldn't let you ask the question again. Mr. Milian: Well, I appreciate that, Commissioner, but hopefully, we still have an opportunity here to speak. Mr. Chavez: Mr. Chairman, I move to limit -- Mr. Milian: Chief -- Chair Gort: Excuse me. Hold up. Mr. Milian: Chief the question is this. Having said that about insubordination, in your career have you seen officers disciplined for not following orders of their supervisors? Assistant Chief Blom: Yes, sir. Mr. Milian: Now going back to the situation that you mentioned regarding Chief Brown. Did you prepare any paperwork or any memoranda regarding the transfer, demotion, or sanctions that were taken against Chief Brown? Assistant Chief Blom: Chief Brown wasn't transferred or demotioned [sic] or sanctioned. City of Miami Page 251 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Okay. Isn't it true that Chief Brown was stripped of all his operational and administrative responsibilities? Assistant Chief Blom: Chief Brown was left in the office that he was there. He was kept out of the chain of command. And the Manager told me he was going move on Chief Brown's demotion, and he was going to call me on that. Mr. Milian: During the time and tenure of Chief Exposito until the time he was suspended, was Chief Brown transferred or reassigned to another assignment given his rank, experience, and training? Assistant Chief Blom: Yes. Mr. Chavez: Mr. Chairman, asked and answered. Mr. Milian: What was that position? Assistant Chief Blom: He went from the chief of investigations to the chief of administration. Mr. Milian: And after he was stripped of his operational and administrative duties, was he ever reassigned to another position consistent with his rank and experience within the Department? Mr. Chavez: Objection. Asked and answered. We're relitigating the same issues that have been litigated all day. Assistant Chief Blom: No. He stayed in the same position. Mr. Milian: Okay. But with no operational administrative responsibilities? Assistant Chief Blom: That's correct. Mr. Milian: The same thing happened with Commander Roque. Assistant Chief Blom: No. Mr. Milian: Commander Roque was assigned to a new assignment. Assistant Chief Blom: That's correct. Mr. Milian: Did you prepare any memoranda, any transfer documents showing that he was being reassigned to a new transfer assignment with the same duties and responsibilities, operation and administrative responsibilities? Assistant Chief Blom: He had different duties and responsibilities. I had him transferred one to the central district and one to the north district. I called those supervisors in. I told them to give those people duties commensurate with their rank, and make sure that they were treated with respect and dignity and give them duties so they can perform. There's a lot of things they can do behind the desk, as I explained before, that are not demeaning and commanders can do. I did jobs like that as a captain for many years. So the other thing was why weren't they given transfer papers. The Manager indicated to me that he was moving on their demotions. At that time I would have given him transfer papers. Mr. Milian: Did you ever prepare any memoranda on those transfers? City of Miami Page 252 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Assistant Chief Blom: No. They weren't transferred. Mr. Milian: Okay. Did you ever prepare any documents regarding the conversations you had with any -- Mr. Chavez: Mr. Chairman -- Mr. Milian: -- of the supervisors that you talked about? Mr. Chavez: -- it's asked and answered -- Chair Gort: No. Mr. Chavez: -- several times. Commissioner Suarez: Mr. Chairman, ifI may? Chair Gort: It's been answered already. Yes. Commissioner Suarez: IfI may? Look. He's a --I guess surrebuttal. I've never even heard of that term -- surrebuttal witness that was called by the defense counsel. He did not have to be called. You know, we have given an incredible amount of latitude throughout this entire procedure, which we should not have -- I agree with Commissioner Sarnoff -- throughout the day. You know, this is the witness that was recalled by the defense attorney, and he is asking questions regarding his testimony, andl think he's answering them well. So -- Assistant Chief Blom: Thank you. I'll continue. Mr. Milian: Chief the question was specifically. You said you instructed some supervisors to effectuate those transfers. Have you disciplined any of those supervisors for not having effectuated those so-called transfers? Assistant Chief Blom: I'm sorry? Mr. Milian: Have you disciplined any of those supervisors -- Assistant Chief Blom: No, I didn't -- Commissioner Sarnoff.. That question -- wait a minute. Chair Gort: That question -- Commissioner Sarnoff.. -- is like when is the last time you stopped beating your wife. Mr. Milian: Commissioner -- Commissioner Sarnoff.. That is such an unfair question, and you know that. Mr. Milian: But it's not unfair. Commissioner Sarnoff.. You're actually smiling. Mr. Milian: It's not unfair. Commissioner Sarnoff.. You know it. City of Miami Page 253 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: No. I'm smiling because you -- if you want to be a litigant down here, you're welcomed to the party, but -- Commissioner Sarnoff. You know he doesn't know what the -- Mr. Milian: You're arguing with me. Commissioner Sarnoff. -- he doesn't know -- Commissioner Spence -Jones: Okay, guys. I don't have the gavel, but can you hit that, Willy, please, because it's late? Can you hit it, please? Calm down. Can we get through this, please? Mr. Milian: Yes, ma'am. Unidentified Speaker: Yes. Commissioner Spence -Jones: Okay. Mr. Milian: But the point is this, the gentleman has made statements regarding alleged transfers that have not been documented, that have not been documented in any personnel paperwork, and that directly contradict the testimony of the witnesses. Commissioner Spence -Jones: Right. Mr. Milian: And we're entitled to see whether this has been substantiated at any place, at any time. Commissioner Spence -Jones: I -- counsel -- Mr. Milian: Yes, ma'am. Commissioner Spence -Jones: -- it's -- you must have -- at 12 o'clock, you must have gotten like a burst of energy or something. Mr. Chavez: Well, what happened -- Mr. Milian: I've been told that before, Commissioner. Commissioner Spence -Jones: Okay. Mr. Chavez: Madam -- Commissioner Spence -Jones: I'm just telling you, my God. I'm like, can I have some of what you got. Mr. Chavez: Madam Presi -- not Madam President. Commissioner Spence -Jones: But -- and I'm sorry. I think -- Unidentified Speaker: What happens is -- Commissioner Spence -Jones: -- we got the point. I think we all have -- counsel -- Mr. Milian: Yes, ma'am. City of Miami Page 254 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: -- I think we all got the point. Mr. Milian: Yes, ma'am. Commissioner Spence -Jones: Okay. After a while, we're not going to get it anymore because it's enough. I think we all got the point. Mr. Milian: I understand. And I'm going to wrap it up in a second. Chief Blom, did you ever give any statement to any Internal Affairs investigator or prepare any memoranda regarding your actions that you testified to today here before the Commission? Assistant Chief Blom: No, sir. Mr. Milian: Okay. And have you ever talked to anybody else in the chain of command regarding the statements that you made here before the Commission today? Assistant Chief Blom: There were a lot of statements I made. I made statements on crime. I made statements on -- what are you -- which ones are you talking about specifically? The transfers? Mr. Milian: On any of the personnel actions. Assistant Chief Blom: Any of the personnel actions? Mr. Milian: Yes. Assistant Chief Blom: The Chief. Mr. Milian: Only the Chief? Assistant Chief Blom: Yes, sir. Mr. Milian: Now let me ask you this question. You've been here during the proceedings today the entire time. Assistant Chief Blom: Yes, sir. Mr. Milian: And how many times have you testified today? Mr. Chavez: Mr. Chairman, I'm going to object on what the strategy was with regards to the presentation of the case. Mr. Milian was late in coming, retained in the middle of the proceedings. I had elected to close at the time of the presentation, purposely limiting the case in chief. Their rebuttal ended up opening a case in chief on their behalf. Commissioner Sarnoff. Here's your answer, counsel. Nobody invoked the rule. So since nobody invoked the rule and he didn't come in and invoke the rule, he can't even ask the question that he heard, which is 1"d like you to comment on everybody's testimony today because have you heard it all? "You didn't invoke the rule. It's not appropriate to ask him to comment on what he heard today. Mr. Milian: I'm not asking that, Commissioner. I'm simply asking him how many times he has tested today regarding the matters he just presented before the Commission. That's all. It calls for -- City of Miami Page 255 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: None, to my knowledge. Mr. Milian: -- once, twice, three times. Assistant Chief Blom: This is the first time, sir. Commissioner Sarnoff. He's -- Mr. Milian: This is the first time. Commissioner Sarnoff. -- only been up here this one time. Mr. Milian: Well, Commissioner, I can ask him the question. It's a simple question. Mr. Chavez: I believe the -- Mr. Milian: The record should be clear. And there are reasons that I don't want to delve into right now why I'm revealing that. And really don't understand why you've taken this attitude against me. Commissioner Sarnoff. Well, it's not against you. I would be doing it against the other attorney as well if he was asking questions like when was the last time you stopped beating your wife and Mr. Milian: Well, I never asked that question -- Commissioner Sarnoff. -- how many -- Mr. Milian: -- for the record, Commissioner. Andl think it's rather unfair for you to attack my position in trying to get at the truth of the matter. Certain allegations have been made here that have come up for the first time. Commissioner Sarnoff. Look, you can make as many self-serving statements as you want. Mr. Milian: That's not self-serving. It's the truth. Commissioner Sarnoff. It's your -- it was your question -- Commissioner Spence -Jones: Thank you. Chair Gort: Come on, guys. Commissioner Sarnoff. -- that was objectionable. And for all intents and purposes, the Chair doesn't know the objectionable nature of your question. I suspect you do, but you know, it's 12: 30 at night [sic] -- Mr. Milian: Commissioner, when I arrived here today, I was told that the rules of evidence here and procedure were not being applied in any strict fashion by your City Attorney. I've abided by that. And I've asked actually very, very specific questions on matters that think are important to lay down on the record for not only you, but for the entire community. And I think it's only fair to allow me to explore those matters. And actually, I'm almost -- I'm finished. But I really don't appreciate that you get involved and almost take me on as an adversary when I'm not an adversary here. I'm here to help in the process of elucidating what transpired and what did not transpire. City of Miami Page 256 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff.. No, no, no, no. If you notice, I didn't object to every one of your questions. Mr. Milian: No. But you've been pretty consistent lately. Commissioner Sarnoff.. But when you threw -- when you -- well, I got news for you. When you threw the last -- Commissioner Spence -Jones: Okay. Commissioner Sarnoff.. -- series of questions in, they were objectionable. Commissioner Suarez: Guys, guys. We're just wasting time. Mr. Milian: Thank you, Commissioner. Thank you, Mr. Chairman. Mr. Chavez: ChiefExposito. Commissioner Sarnoff.. This should be an hour. Mr. Chavez: Chief during your tenure with the Department, have you ever been rolled back? Chief Exposito: Yes. Mr. Chavez: Were you given notice before you were rolled back? ChiefExposito: No, sir. Mr. Chavez: Were you given a reason why you were rolled back? ChiefExposito: No, sir. I specifically asked why I was being rolled back, andl was told that served at the will of the Chief of Police and, therefore, they had -- they did not have to give me a reason. Mr. Chavez: Chief Perry Anderson. Do you remember him? ChiefExposito: Yes. Mr. Chavez: How many rollbacks did he have during his tenure? Chief Exposito: Well, I -- when he walked in the door, I think he rolled back about 24 staff members, and he appointed new staff members. Mr. Chavez: Regarding the prior rollbacks of Castro and Corbello [sic], who was the City Manager at the time? ChiefExposito: Excuse me; what were the names? Mr. Chavez: Castro and Corbello [sic]. ChiefExposito: Herbello? Mr. Chavez: Herbello. Forgive me. ChiefExposito: Yes. That was Mr. Migoya. City of Miami Page 257 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: And did Mr. Migoya ask you for any cause whatsoever as it pertained to those rollbacks? Chief Exposito: No. As a matter offact, any rollbacks or appointments that made under any of the City Managers prior to Mr. Martinez, I was never questioned on why I was doing it. And simply submitted the paperwork to the City Managers, and they signed off on it because they felt that had legitimate reasons for doing that. Mr. Chavez: Why does the City Manager have to sign off on a rollback? Chief Exposito: Because it goes to -- ER's the one that prepares the paperwork. Mr. Chavez: And ER reports to the -- Chief Exposito: And they report directly to the City Manager. Mr. Chavez: So you can't tell people in ER what to do? ChiefExposito: No, absolutely not. Mr. Chavez: Now, last and brief you were in a -- I think it's a chiefs meeting on July 25. Remember that? ChiefExposito: Yes. Mr. Chavez: Can you just briefly describe the circumstances and the budget issues related to communications you received from your chief in charge of the budget at that time and identify who that was? Chief Exposito: Well, July 25 we had a chiefs meeting in my conference room, and present there was Assistant Chief Roy Brown. And we had on July 28 a couple of items coming up in front of the Commission where there's some questions on our overtime usage and whether we were going to be going over the budget or not. At that meetingl asked Assistant ChiefBrown, are we going to be fine with the budget by the end of the year? And he said to me, We will have a surplus of $680, 000. "Andl said, are you sure about that? And he said, Yes, absolutely. We are going to have a surplus of $680, 000. "On July 28, the day of the Commission meeting, there were a couple of agenda items on there. I believe it might have been Commissioner Dunn and the FOP (Fraternal Order ofPolice). They were going to be making a presentation before the Commission relating to overtime and the budget, because the FOP said that if we hired the officers that we needed, that we were going to be going over the budget and things of that nature. And it's funny, Commissioner Dunn and the FOP, Javier Ortiz to be exact, have the same identical number. They -- according to their figures, we were going to be going over $2.5 million in our budget by the end of the year. Mr. Chavez: Were those numbers correct? Chief Exposito: No, they were not correct. But what I did is, as soon as I heard that, I approached ChiefBrown and said, I've been told that the presentation, they're going to bring out that we're going to be $2.5 million over budget. And he said, Oh, that's correct. "Andl said, Roy, that's not the number you gave me three days ago. And he said, Well, the administration knows. You know, that's not going to be a problem. "I said, it's not a matter of what the administration knows. I didn't know that 'cause you told me that we were going to be 680,000 under budget. So I went to the chiefs office. I had a meeting with some of my staff members, including ChiefBrown and the budget director, our budget director. And during that meeting, City of Miami Page 258 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 she said that we were not going to be going over budget, and we got into a discussion over that. And Chief Brown said, Well, I didn't know that." And she said, Chief Brown, I sent you an e-mail on that." Mr. Chavez: Now, chief -- and l just want to -- Chief Exposito: Okay. Mr. Chavez: -- bring this to a conclusion. Is it customary for persons in supervisory positions, such as yourself, to communicate with either the City Manager's office or others subordinate to you through e-mail and outlines plans by way of e-mail? Chief Exposito: No, not always. Mr. Chavez: Okay. With regards to the manner in which you had customarily communicated with the City Manager, did you communicate fairly frequently through e-mail? Chief Exposito: Yes. Mr. Chavez: Okay. Now the -- I opened -- I believe Ms. -- Commissioner Jones [sic] had some questions for you, and I'm going to open it up for them. Thank you for your time, chief. Chief Exposito: Thank you. Commissioner Spence -Jones: I wasn't the -- I'm not the only one that have questions. Does anybody have questions? Vice Chair Carollo: One of the questions I had was when he first -- when the Chief was first appointed with regards to the different changes he did, and he already answered the question that under none of the former City Managers did he have to ask for permission or cause or so forth. Chief Exposito: No. Vice Chair Carollo: There's a lot of leeway. And you know, I guess with this City Manager, he has to. So that was my question, as far as, you know -- Commissioner Spence -Jones: Chief honestly, it's been two hours -- Chief Exposito: It's been a long day. Commissioner Spence -Jones: -- ago since I had that question. But I do want to kind of at least mention a couple of things that, as I said to Chief Bloom [sic] earlier, really caused me some concerns. If you've known me at all in City Hall, as a former City employee, I've always been pro, you know, City workers. Andl -- it really bothers me when I hear that, you know, junior staff or just staff period is not being treated with respect or dignity; and for whatever reason, they're being retaliated against. So to hear three people come up, you know -- this morning for me was a different kind of high for me this morning. But by the time that we actually got to listening to the people that were affected by this -- andl think that we have to be very mindful of the decisions that we make. And I think that you could relate to that because I'm sure in your past history in the Department just from things that have happened to you perhaps in the past, you know what that feels like more so than anybody else -- Chief Exposito: Yes. City of Miami Page 259 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: -- you know. And I think that -- and then I'm going to just ask my questions. But I think that one of the biggest issues and problems that we have here just in reference to this issue itself -- 'cause I consider -- I feel like there's two sides of this, you know. And I think the root of this -- and you haven't said it in your testimony -- is that there's a issue of trust on both sides. Straight -- I mean -- and don't know why everybody's dancing around the fact that people just don't trust each other. Chief Exposito: Right. Commissioner Spence -Jones: But that's really the root of it. I don't trust you and you don't trust me, so you know, I'm going to make sure that, you know, I put people in my camp thatl can trust. And think that that -- you can never have -- you can never build on anything if the individuals -- whether or not you trust Johnny, Johnny trust you -- it's never going to be right only because you don't trust him. You know, he don't trust you. So this is my -- these are the three things that I have -- I need clarity from you on before I render my decision tonight. The first thing was you said earlier that there were legitimate concerns, right? ChiefExposito: Yes. Commissioner Spence -Jones: That was the reason for the three people that you decided that you wanted to demote or move. ChiefExposito: Roll back. Commissioner Spence -Jones: I'm sorry? Didl say something wrong? ChiefExposito: Roll back. Commissioner Spence -Jones: Roll back. Okay, I'm sorry. Roll back. And the Manager told you to hold off on making that decision, and so -- but I need you to drill down with me on what the legitimate concerns were because when they got up, they have no idea what the concerns could have been. I know you've -- they've mentioned, you know, the budget. But you know, technically, to me those are things that could have been worked out or worked through, you know. So what were the legitimate concerns that you felt so compelled that these people had to be released? Chief Exposito: Well, I'll address Assistant Chief Brown first. As I just mentioned, at best, he had no grasp on our budget. I was coming in front of the Commission where I was going to be attacked because people were saying was going to be over budget. I depend on my assistant chief to keep me informed of issues like that, and he had no clue at best, at best. At worst, it could be something else. But at best, he had no clue what was going on with the budget. Until spoke to our budget director, which I shouldn't have to do, because that's why I have an assistant chief there, I did not know exactly where we were with the budget because the answers he was giving me were not accurate answers. So obviously, there's -- there are issues there that go way beyond. He had no clue what was going on there. The budget is very important, as you know. Commissioner Spence -Jones: Yes. Chief Exposito: I mean, especially now with the City in the situation that it is. As far as the other two individuals, I did warn both of them in December to stay away from a location where arrests had been made. There was all types of crimes taking place there. And they continued to go there. Aside from that, as I mentioned this morning, there are ongoing investigations. I know what the interim chief has said, but apparently he still doesn't know that there are a lot of investigations that we work with other agencies that the paperwork is not in Internal Affairs, and it's not in our special investigations section. It is at that agency. And unless the interim chief City of Miami Page 260 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 has clearance to hear about that, those agencies are not going to talk to him. I have top secret clearance. I can go to any federal agency that we're working with, and they will give me all the information I need, including the 9/11 information that's coming in the future, which I'm sure the interim chief has no clue about because he doesn't have top secret clearance, and it's going to take him six months to get that top secret clearance, if he can get it at all. So these are issues that -- as I mentioned, there are some investigations ongoing that he's not going to find in Internal Affairs, and that's where I have some issues. But I have to reiterate one thing. When your appointed staff -- andl think that the interim chief mentioned it when he said, Well, I have, you know, these 20 people that surround myself with,'those are the people he's going to put on staff. So you know what's going to happen when he takes over, if he gets a job and I'm dismissed, what's going to happen is he's going to go to the Manager, and he's going to say, I'm going to roll back these 20 people and replace them with these 20 people that I want. Commissioner Spence -Jones: But I think today he said he wasn't going to do that. Chief Exposito: Yes, he said he wouldn't do that, but he would clear it with the Manager first, okay. Well, that's a given. I mean, any time I rolled back anyone or I promoted someone, I had to go to the Manager. I don't have the power to demote anybody, andl don't have the power to promote anybody. That is something that the Manager does. I never was questioned on any personnel moves such as that by any of the previous City Managers, with the exception of the Luis Cabrera situation. And in that case, Mr. Migoya did not say you cannot demote him. He just asked me to go talk to the Mayor. And after I spoke to the Mayor and I explained to him exactly what I was going to be doing, and he had no problems with it, I came back to Mr. Migoya, and he assured me that he was going to be rolled back. Apparently that didn't happen. I have now one deputy chief on my department and four assistant chiefs. And you know what? I have no budget for that deputy chief. So he's there; there's no budget for that. And that's the problem when the Manager and the police chief cannot communicate. I never -- I've gone through four City Managers already. I never had a problem communicating with the previous three. Andl had no personal relationships with them when I got this job. Commissioner Spence -Jones: So this is my last question, chief. The other part of this for me was when I look at, you know -- or listen to the testimony of the three and them not knowing or them communicating them not knowing that they were actually being moved, meaning from the standpoint -- not they weren't moved. Same position, same rank. But there was no communication that took place between the Manager or between you and those three people. Like why was the lack -- why was there like no communication or anything given to them to let them know that this change --? It was kind of like they reported -- maybe I misheard it this morning -- but like they reported to work. They were stripped of their duties. Everybody else kind of knew what was going on, but there was no reason why that was -- why the action was taking place. And listen, you know, it's very -- maybe not for everyone, but for me it's very obvious that there's a serious division that's going on. And for you, I know it really boils down to loyalty, you know. But the challenge for me on the inside is regardless of how these individuals decided to -- let's say they were not loyal or were not trustworthy. That was part of the reasoning in your mind. And you have probably every right to feel that way. I'm sure that there's enough that has happened to you in these last two years, almost two years to make you feel that way. I'm just concerned that your actions on that -- on those issues with these people, regardless of whether or not you trusted them or you felt that they were loyal to you, affected your judgment, you know. So I got judgment issues on both side. I got judgment issues on your side -- and I just want to be fair -- andl got judgment issues on your side, Johnny. I mean -- so, for me, I just -- it's very hard for me to digest, you know, this whole hearing and not be fair to both sides. And l just can't understand -- and again, I'm just walking in this 18 months later -- why you guys couldn't work this out. Chief Exposito: Well, let me explain something to you. As a police chief I have a responsibility. My responsibility is not only for the -- to the employees, but more importantly, to this City. City of Miami Page 261 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Right. Chief Exposito: Because that's who I am concerned about. Commissioner Spence -Jones: Right. Chief Exposito: And when I request loyalty from my immediate staff it's not loyalty to me; it's loyalty to this organization and this City, because ifI can't get them to buy into my philosophy and to my vision, it's not going to work. And this -- and the ultimate people that are going to suffer are the citizens of our community. So yes, loyalty to me is very important. But the loyalty is not to me; it's to the organization. Commissioner Spence -Jones: Yeah. Andl -- and I'm sorry, guys, for taking so much time with this, because I think -- I guess we're wrapping up. Andl believe that the chief deserves to have this opportunity to kind of communicate, you know, what his issues and concerns are. Andl totally hear you. I just have to -- you know, again, this is the reason why I say -- I hate to say it again this -- late -- at I o'clock in the morning. This is the reason why I wanted us to have time to kind of work through it, because I went into this situation today, andl mentioned it to everybody today. With my particular community, like you said, it's not just loyalty to your staff and to, you know, the organization, but to the community. You know, being committed to the community as well with those same issues, you know. And those are issues that clearly, you know, once this issue was resolved with you today during this hearing or not, that I felt it was extremely important for you to sit down and brief me on the main issues that have been affecting this district, which is the whole shooting scene. You know, I have a different opinion about the shootings issue, you know, andl know that every time you probably hear the shooting things -- issue, you know, you have a different reaction or feeling about the whole thing. Andl know we have an ongoing investigation happening with it. But that's my reality where I live, the district I serve, you know. That's what the perception is out in the community, and that's the reason why I did not want to really address this issue until was able to kind of communicate to my constituents, after only being on the job for three or four days, how important it was for them to understand. Now I did get a chance to speak to one of the families, chief and one of those families were very much, you know, open to have the dialogue. It was like, Commissioner, whatever you feel you do is the right thing. But I wish I would have had the opportunity, Mr. Manager, to have had the opportunity to speak to the other families that had been affected. I just didn't have to time to do it because I've been back trying to digest all this other stuff. Just for me -- andl don't want to talk anymore about it -- I just kind of feel like in the end, when I look at the whole situation, I look at the three individuals that were affected by all of this, I just don't understand why you didn't let them know in advance or why you didn't -- why didn't you give them notice or give them something in writing instead of them kind of finding out by way of e-mail -- I just think that -- just like you have to be treated fairly, I just feel like your underlings have to be treated fairly as well. ChiefExposito: Well -- Commissioner Spence -Jones: Andl don't know if it was just because maybe you were too frustrated with them by then and all you wanted to do is kind of move on. ChiefExposito: No. I was on vacation. Commissioner Spence -Jones: Okay. Chief Exposito: And that's why I left those duties with Assistant Chief Blom, and he explained to you exactly -- City of Miami Page 262 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Yeah. Chief Exposito: -- how they were notified and what happened. And the reason I waited until the morning of -- that I left on vacation, it was to give the City Manager an opportunity to come back and say, listen, you send me this e-mail where you're telling me that you're going to be moving these people around, andl don't agree with it, andl don't want you to do it, andl want you to stop. And that never happened. It still hasn't happened 30-some odd days later. So it's not thatl was being insubordinate. The man never told me don't do that. What he told me is don't demote them. I didn't demote them. I didn't -- I don't have the power to demote them. Commissioner Spence -Jones: Right. But chief you can see how somebody's looking at -- could look at the situation -- you know how -- come on. You could see how somebody can look at the situation and say, Yeah, chief you didn't demote them, but you know, the person's in the corner feeling humiliated. "You know what I mean. So I just -- that's my concern, you know. And maybe ifI hadn't heard from them, it would be a different energy altogether. But I just have to be able to communicate. Just like this morning, you know, when you guys are presenting to me. I mean, to me everything -- for me, it was very much on point, and it was obvious that Johnny -- excuse me -- Mr. Manager had some issues that were not tight. But I guess after he got counsel, he was able to kind of communicate what was actually, you know, happening in that process that, you know, helped his situation along. But I just had to say that, chief. I'm stuck on those three issues. I have a problem with the retaliation. And beyond all of that, I just felt -- I just feel in my heart that you guys could have worked this out and that it didn't have to get to this point. Chief Exposito: Well, Commissioner, I mean, you said you look at both sides. And they're the ones that are saying that they were retaliated against. No one else is saying it. They're the ones that are saying that. So I can't say that because they say it, that it actually occurred. Commissioner Spence -Jones: I know. But you -- I haven't talked to the other three people, so I don't know -- the ones that got demoted or got rolled back or whatever the case may -- Chief Exposito: They got rolled back months ago. Commissioner Spence -Jones: Right. Chief Exposito: They didn't make an issue out of it. Commissioner Spence -Jones: But I'm saying, I don't know -- I don't have that information in front of me to find out whether or not they're happy or pleased or feel retaliated against either. I just --I'm really stuck on that. I'm really stuck on that. And l just want --I wanted to get clarity from you on that. Chief Exposito: Right. Commissioner Spence -Jones: And it was just important for me to at least have that conversation with you. So I'm done with my questioning on that part of it. I don't know if he may have -- or somebody else has issues. Mr. Chavez: (UNINTET,TIGIBT,F) more questions, or would you like me to proceed? Chair Gort: No, I don't think there's any more questions. Mr. Chavez: Thank you. Mr. Milian: Chief let me ask you the following -- City of Miami Page 263 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Are you --? Mr. Milian: Yes, ma'am. Commissioner Spence -Jones: No. Are you -- you have questions, too? Okay, go ahead. Mr. Milian: Only for the chief. You're on surrebuttal. Commissioner Spence -Jones: Okay. Mr. Milian: Chief you would agree with me that the Department was in trouble by exceeding its overtime budget, correct? Chief Exposito: No. Mr. Milian: Okay. You don't think that there was an escalation of the overtime budget and the expenditures on overtime that commenced in February and was continuing to escalate through the month of August? Chief Exposito: There was more overtime than we had budgeted for, but the Department was not in trouble. Mr. Milian: Okay. But didn't ask that. The overtime budget -- and maybe I wasn't clear, and apologize for that -- was exceeding what had been allotted to the Department? Chief Exposito: That's correct. We were cut $5 million this year from the previous year because we had saved $5 million the year before. Mr. Milian: And progressively, you would agree with me that it went from exceeding each month maybe 338,000 in March to getting over to 700,000 by August? Chief Exposito: I don't recall the figures off the top of my head. Mr. Milian: Okay. Chief did you ever review the figures yourself on the overtime from either the budget director or anybody else? Chief Exposito: I did sit down with the budget director when I realized that I was having a problem with Assistant Chief Brown and the figures that he was throwing at me. Mr. Milian: Okay. Who selected Chief Brown for that position? ChiefExposito: I did. Mr. Milian: And you -- your testimony here is that Chief Brown had no clue to what he was doing? Chief Exposito: Well -- so I found out. Mr. Milian: Okay. But you were the one who appointed him for that position? ChiefExposito: Absolutely. Mr. Milian: Okay. Now, chief you would agree with me as been -- as commented here before by the Commissioners, that you are subject to the supervision and control of the City Manager in all matters. Is that correct? City of Miami Page 264 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 ChiefExposito: Yes. Mr. Milian: And you agree with me that as his direct -- or your direct supervisor, you have to fulfill the orders that he gives to you, correct? ChiefExposito: That's correct. Mr. Milian: And insubordination is not complying with the instructions and orders and directions of your immediate supervisor. Isn't that correct? ChiefExposito: That's correct. Mr. Milian: And it's your position that for rollbacks to take place in the Department, the City Manager has complete authority to tell you not to roll back those officers, correct? ChiefExposito: That's correct. Mr. Milian: And in the case of these three officers, you were talking about top secret clearances and a number of things you alluded to some investigations. Isn't it a fact, chief that none of these three officers, Commanders Roque and Perez, and Assistant Chief Brown, are under any active investigation by the Miami -Dade or Miami Police Department? ChiefExposito: I will not comment on ongoing investigations. I will tell you that Assistant Chief Brown, I had issues with him relating to the budget. Mr. Milian: Well, let me ask you this, chief. You alluded to sensitive investigations, and you talk about top secret clearances. Would you leave a member of your staff in a sensitive position carrying a gun and a badge with access to computers, equipment and personnel ofMiami Police Department if he in any way was a risk -- if in any way he was a risk to the security and safety of the City ofMiami police and the citizens of this community? Chief Expositor Well, Mr. Milian, as you know, when you're doing an investigation, right from the get -go of that investigation, you don't know for a fact that they've committed a crime or about to commit a crime. That's why you're doing the investigation. At some point during that investigation, you either clear the officers or you substantiate the case against them and they get arrested. But I'm not going to get into any particulars as to where we are with any case, but I will tell you just because a person's under investigation doesn't necessarily mean they're guilty, but do have information that know because I have the clearance, andl am not about to share that with you. Mr. Milian: But my question to you, chief was not that. My question to you was very specific. Would you leave a member of your staff personnel ofMiami-Dade Police Department or Miami Police Department, City ofMiami, with access to weapons, badges, credentials, authority, equipment, other personnel if they were suspected of any serious grievous crime or one involving national security violations? Mr. Chavez: Mr. Chairman, asked and answered. Chair Gort: I think he answered that question already. Mr. Milian: Well -- Chair Gort: I think he answered that question. City ofMiami Page 265 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: I disagree, but I will come back with that. Did you initiate any personnel action against any of those three members of the Miami -Dade -- or Miami Police Department, Roque, Perez, and Brown? Chief Exposito: What do you mean by that? Mr. Milian: Did you initiate any personnel actions? Were any memoranda prepared to discipline any of those officers or put them on administrative duties and strip them of their credentials, their badges, and their guns? Chief Exposito: No. Mr. Milian: To your knowledge, has that been done by any authority or any entity up to this moment? Chief Exposito: No. Mr. Milian: And isn't it your responsibility to keep the City Manager informed of any matter involving the Police Department that affects its supervision and control, both the safety and security of the citizens of the City ofMiami? Chief Exposito: As long as it's not confidential information that he is not entitled to have. Mr. Milian: Chief have you been instructed by any entity outside of your chain of command, the City Manager, on activities of the City ofMiami Police Department that you refuse or decline to disclose to the Manager? Chief Exposito: I did sign a certificate of confidentiality with different law enforcement agencies and I'm bound by that, and that supersedes whatever information goes to the Manager. Mr. Milian: Well, my question is this. Are any of those three members under any type of investigation, those three members, not other members of the Department, those three members? Chief Exposito: Sir -- Mr. Chavez: Asked and answered. Chief Exposito: -- I've answered that question three times. Mr. Chavez: -- Mr. Chair. Chair Gort: Yeah. Mr. Chavez: Asked and answered, Mr. Chairman. Mr. Milian: Are you declining to answer the question, chief? Unidentified Speaker: Asked and answered. Chief Exposito: I've answered the question three times. Mr. Milian: You know -- Mr. Chavez: Mr. Chairman -- City ofMiami Page 266 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chief Exposito: I am not going to get -- Mr. Milian: -- I have a lot of people -- Chair Gort: I got it, I got it, I got it. Mr. Milian: -- formulating objections. There's only one opposing counsel. Chair Gort: It's 1: 05 now. Mr. Chavez: Andl was speaking into the microphone. Chair Gort: Okay, wait a minute. Mr. Chavez: I don't want to be discourteous. Asked and answered. Chair Gort: I think he's answered the question. Mr. Milian: Now, chief let me ask you this. As far as you know, those three members continue to be employed by the City ofMiami Police Department. Isn't that also true? Chief Exposito: Yes. Mr. Chavez: Object to the form. Quite the obvious; they're here in uniform. Chair Gort: Excuse me. You want to have this and handle the meeting? Mr. Chavez: Well, I'd be dangerous with that at the moment, sir. Chair Gort: Please. Okay. Mr. Milian: And finally, chief let me ask you this. You keep alluding to some tobacco shop. Could you state for the record what the name and the address of that tobacco shop is? Mr. Chavez: Object. Mr. Milian: But that was raised earlier on direct testimony. Could you, chief? Mr. Chavez: Chief cannot answer the question. Mr. Milian: Chief have you ever been to that tobacco shop yourself? Chief Exposito: Yes, I have. Mr. Milian: And in fact, you've been photographed with the owner of that tobacco shop, haven't you? Chief Exposito: I went to that tobacco shop on one occasion, and it was for a retirement, and that's the only time I've been there. Mr. Milian: Okay. And you're aware that your photograph and you're on the Internet with the owner of that tobacco shop? Chief Exposito: I'm not aware of that. City ofMiami Page 267 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Would you like me to show you the picture, chief? Chief Exposito: Sure. Mr. Milian. May I -- Chair Gort: Sure. Mr. Milian: -- approach the witness? Chief Exposito: Okay. Mr. Milian: Chief I showed you a picture dated August 11, 2011, and it is correctly a picture of you with the owner of that shop, correct? Mr. Chavez: Object to the form, foundation, and qualification. The date that may appear on -- Chair Gort: Okay. Mr. Chavez: -- the actual thing may not be the date the picture was photographed. Chair Gort: You're right. Mr. Chavez: Taken. Chair Gort: Excuse me. He's correct on that. Mr. Milian: I only stated that it's dated August 11, 2011. Chief you had an opportunity to see it? Mr. Chavez: The photograph or the -- ChiefExposito: The photograph may be dated. Chair Gort: The date. ChiefExposito: But I'm telling you that that's not when that photograph was taken. Mr. Milian: Oh, okay. Chief have you ever taken any legal action to prevent the publication of your photograph in that enterprise? Chief Exposito: No. I didn't even know it existed -- Mr. Chavez: Objection. Chief Exposito: -- until you just showed it to me. Mr. Milian: Okay. Mr. Chavez: Assumes facts not in evidence. Mr. Milian: Chief having talked about these tobacco shops, have you initiated any disciplinary action for any of these officers, reference their visiting that tobacco shop? Chief Exposito: Suffice it to say that I warned them to stay away from the place, and no, I have City of Miami Page 268 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 not. Mr. Milian: Okay. Chief you were requested to provide a plan on the reduction of overtime. It's a matter that was covered earlier -- that questioned -- Mr. Chairman, with all due respect, I know that everybody's tired. I'm tired. I don't want to be here. But I don't need people commenting gratuitously from the chamber on these matters, and I'd ask just that the Chairman advise people that, you know, they should maintain their silence and listen. Chief getting back to this plan, this operational plan, did you ever prepare a staff operational action memo on how to reduce the consumption of overtime for the City Manager? ChiefExposito: No. I simply responded on an e-mail. Mr. Milian: Chief is it your position that an e-mail is acceptable staff work from the senior staff of the City of Miami Police Department? Mr. Chavez: I would object -- Chair Gort: Yes. Mr. Chavez: -- that it is outside the charging document. Mr. Milian: Actually, the truth of the matter, the matter was raised by opposing counsel when he specifically asked the chief was it customary to use e-mails for staff work, and he clearly answered no. And I'm asking him if he thinks it's acceptable staff work to use e-mails to prepare staff action plans and memoranda. Chief Exposito: It has been used in the past with other City Managers. When they've asked me for something, I have given it to them in an e-mail. Mr. Milian: Chief you would agree with me that at the time you were under the supervision of City Manager Johnny Martinez, you were subject to his requirements, his supervision, and his control of your activities as Chief of Police? ChiefExposito: Yes. Mr. Milian: And you would agree with me that you were subordinate to him at all times when you were holding the position of Chief of Police of the City ofMiami? ChiefExposito: Yes. Mr. Milian: No further questions. ChiefExposito: I was subordinate. Ms. Thompson: Mr. Milian. Mr. Milian: Yes, ma'am. Ms. Thompson: I'm here. I need a copy of what you showed the Commissioners. We would like to have a copy. Mr. Milian: Ask them to make a copy and make it a part of the record. Ms. Thompson: Do you want to see it now, Vice Chair? Mr. Milian: 171 show it to counsel as well, before I turn it over. City ofMiami Page 269 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: No further questions. Anything you'd like to add, chief? ChiefExposito: No. The only thingl would say is that as far as the orders given, I abided by the orders. I was told not to demote. I did not demote. I was told to come up with an action plan. The Manager andl met with the FOP, and he knew exactly what the action plan was, and he wanted me to implement that action plan. That's what he asked for in this e-mail and that's what I told him. We will go ahead and implement that. The only thing mentioned as a caveat is that since it isn't my action plan andl really think this is going to create problems with crime, I will not be responsible for it. Mr. Chavez: When he received that e-mail, did he say can you please put this in some form of organizational memo? ChiefExposito: No. Mr. Chavez: And that was in July 20? ChiefExposito: Yes. Mr. Chavez: No further questions. Chair Gort: Okay. Any further -- that's it? Everybody rest? Mr. Chavez: I have my last witness, Major Alvarez. Commissioner Spence -Jones: Last witness? Vice Chair Carollo: And before we do that, Mr. Chairman, please. Chair Gort: Yeah, go ahead. Vice Chair Carollo: Thank you. Question for the chief. There's been a lot of testimony that has changed during the course of the day. Something is stated, then it's corrected and so forth. I just want to be clear. What is the norm when someone is rolled back as far as letting them know and so forth? 'Cause I've heard from various people that no, we -- you know, nothing was told ahead of time and -- ChiefExposito: Right. Vice Chair Carollo: So what is the norm? I mean, is it a norm that you really don't communicate that much and so forth? Andl don't mean just with you. ChiefExposito: Right. Vice Chair Carollo: I mean just, you know -- ChiefExposito: Right. Vice Chair Carollo: You're a 37-year -- Chief Expositor Well, that's a subject I'm very familiar with. As I mentioned before, I was rolled back once before. And the way that roll back occurred is I got called into the chief's office. Someone from ER was sitting there with the chief and they gave me a memorandum that said effective immediately; you're being rolled back to the rank of captain. And it says your -- City of Miami Page 270 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 someone will be notifying you of your assignment and all that. When I asked what is the reason, I was told by the ER person, We don't need a reason; you serve at the will of the Chief of Police." Andl accepted that, as far as that meeting went. And that's basically it. As a staff member, you go in knowing that this job can last one day, one hour, ten years. In my case, I was a staff member for almost 20 years as a major. So that's just one of those things that you accept that job knowing that you could get rolled back at any time and that the chief does not need a reason. Vice Chair Carollo: Thank you. That's all. ChiefExposito: Thank you. Mr. Chavez: Major Alvarez, have you been reassigned? Major Alvarez: Yes, I have. Mr. Chavez: What position did you hold as of September 2, and what are you assignments as of 8:30 in the morning, September 6? Major Alvarez: September 2, I was the major in charge oflnternalAffairs, reporting directly to the Chief of Police, the way Internal Affairs should. Mr. Chavez: And on September 6, what was your reassignment? Major Alvarez: I was reassigned to patrol central as the major in charge of central patrol. Mr. Chavez: Were you presented with transfer orders? Major Alvarez: No. And the curious thing here is that went from one section, which is the Chief of Police, to a different section, which is patrol. Andl received any transfer papers or any reasons why. Mr. Chavez: Were you provided with any disciplinary action notice? Major Alvarez: No. Mr. Chavez: Were you provided with any notice whatsoever? Major Alvarez: No. Mr. Chavez: What was -- how did you find out you had been reassigned? Major Alvarez: At the 2 o'clock staff meeting in front of the whole staff. Mr. Chavez: Did your card keys work that day into your office? Major Alvarez: No. I came here to this building in the morning to support my chief when he had the meeting with the Manager. I made it to my office about 9: 30. I took my key card to get in of my own office. I couldn't get in. So I had -- Mr. Chavez: What time in the morning was that, sir? Major Alvarez: Around 9: 30-ish, okay. I had to knock on the glass, get attention from one of the employees to let me in. I had the key to my office. I was able to get to my office. I find out at that time that my commander was also locked out of his -- of the office. City of Miami Page 271 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Who is that? Major Alvarez: Commander Jose Rodriguez. Mr. Chavez: Was he reassigned? Major Alvarez: He was reassigned at the same time I was. He was reassigned to a different section completely, which is the Criminal Investigation Division under Assistant Chief Seiglie, and he also did not receive any transfer papers or any reasons. Mr. Chavez: To the best of your knowledge, your nonfunctioning card key, however it is you gain access, that was your notice? Major Alvarez: I guess that was my first notice. Mr. Chavez: Now -- rather cold notice? Major Alvarez: Excuse me? Mr. Chavez: Was a rather cold notice, rather insensitive? Major Alvarez: Well, I expected that as soon as the chief will be suspended, I was going to be removed from IA so whoever was designated could go in there and try to get information on some of my investigations. Mr. Chavez: Now I want to bring you back to the August 2011 time frame. Did you have any conversations with the City Manager, Johnny Martinez, after August 8, 2011? Major Alvarez: Yes, I did. Mr. Chavez: What was the substance of your communications? Major Alvarez: I had called him on the 10th at night, which was Wednesday, and we agreed to meet. He asked to meet around 10 o'clock. I told him I was teaching an Internal Affairs class with staff at 10, so he would say about 1 o'clock in the morning. Around -- I mean, around 10 in the morning. I said I'm teaching the class so we can't do it. We need to change it to like 1 or 2 in the afternoon. So he said he was going to call me after lunch to let me know when to meet. Apparently, I got a call around 6: 45, 6: 50 in the morning from the Manager, Thursday morning, where he says, Al, I'm on my way in. Can we go ahead and meet before anybody gets in, just you and me? "I said, okay. If Al is up, Al Vega, Executive Assistant Al Vega, can he come? He says, Yes. "So I go, Johnny, I had a feeling. The same way you had a feeling that you wanted me to call you, I had a feeling you were going to call me in the morning so I'm already dressed, and I'll be there in 10 minutes. Mr. Chavez: Did you discuss the demotions at issue or the rollbacks at issue that have been the scope of this entire proceeding? Major Alvarez: Yes. I discussed the three rollbacks. I felt that I could assist the situation. The chief was going to be out for two weeks, okay. Everything should have gone smoothly. If the previous week everything was set up for -- the rollbacks would have happened. We had people in place already to -- that were not told they were going to take the positions, but especially in the commander levels, it's very important that we put those people -- replace those people with the commanders. Andl thinkl tried to explain to some of the Commissioners that were affected that we were in the process of that. We even met with those Commissioners and introduced the acting commanders, which were lieutenants, to those Commissioners. So we did not lose allow of the City of Miami Page 272 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 supervision in those NET areas. Mr. Chavez: Did you get -- walk away with an understanding as to whether or not those demotions or rollbacks were going to be permitted subsequent to that meeting? Major Alvarez: Yes. But let me explain. I -- the Manager asked me why the demotions. I said, look, I got to break it in two groups. The first group is Roque and Perez. The reason they're being demoted is the chief back in December had a conversation with them to stay out of particular cigar location. I've heard a lot of information here. A lot of it's good information. A lot of it is bad information. As an Internal Affairs investigator -- andl thinkl need to address this -- we have all kinds of complaints. We have the general complaints, and we do have sergeants, only sergeants do general investigation complaints. Then we have the proactive and public corruption side. Those sides are three sergeants with three teams. I had to increase my public corruption squad because of the workload we got, okay. Everybody in the public corruption squad is cross -designated and sworn under Titles 18 and 21 of the Federal Code. Some of the others are not yet, but we're in the process of getting all of the proactive officers sworn, which I'm very proud that we're the only -- I believe the only city in the state of Florida that has that many officers cross -designated, okay, and that comes from not friendship, but from trust, which is very important, and not loyalty. Now -- it's been a long day. I lost the train of thought. Mr. Chavez: Well, that's okay. Major Alvarez: What was the --? Mr. Chavez: Essentially -- Major Alvarez: Okay. I explained to the Manager that this location, these two commanders were told to stay away from, okay. That location is visited heavily by public officials, not only from the City but from other jurisdictions. Apparently, they did not understand or they did not abide by the request of the chief of Police, who promoted them to those positions and has expectations. Perception is one of the most important things that you have. I can put a hundred cops around your house and you still perceive that you're not safe, I'm not doing my job, which is very important when you have a location in which one of the employees was arrested twice, once in October 2010 and once in December 2010 for trafficking cocaine, selling it to our officers -- as a matter of fact, on the first arrest, some of these commanders were inside the location while one of their employees, who is a -- not a brother, but I grew up with one of the owners -- was selling us kilos. The second occasion, again it was officers inside the store while we were buying kilos from this guy again. We went into his house, which is a couple blocks away, and got more cocaine, okay. So yeah, definitely, the officers weren't doing anything wrong. But even before we go there, the perception to the public to other law enforcement officers is very simple. They know these people have been arrested, okay. One of the coowners is a convicted felon, federally. He used to be a state senator, okay. The other coowner was the -- was in the middle of an investigation -- andl can talk about this because this is history, historical, okay. He -- in 1988 he was the center of an investigation which led to the discipline of five officers, high-ranking officers, including a major that was demoted because of gifts, cars, and all kinds of informations. One of the other majors that was relieved last year or rolled back last year, we had received information that he used to go to work at times with the SUV (Sports Utility Vehicle), park it at the location, okay -- Mr. Milian: Mr. Chairman, let me make an objection here. We're having a narrative at this point, which has nothing to do with the -- Chair Gort: Okay. City of Miami Page 273 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: -- subject at issue in this matter. And I'm sure Commissioner -- Mr. Chavez: Ultimately -- Mr. Milian: -- (UNINTET,TIGIBT,F) agree we have gone way beyond -- Mr. Chavez: -- I'll move it on. Mr. Milian: -- the scope. And we're not dealing with these individual officers. We're just using a broad brush. We can be here for a long time. I'm sure -- Chair Gort: Yeah. Mr. Milian: -- hearing anecdotes and war stories, but I'd like specific questions to be posed so we can have specific answers. Major Alvarez: I'm trying to clarify Commissioner Spence -Jones questions. Mr. Chavez: Mr. -- Commissioner -- Chairman -- Major Alvarez: Can I finish my answer? Mr. Chavez: Briefly. Major Alvarez: Okay. Well, basically, this guy will come in, park his SUV, and jump into the owner's Bentley, in uniform, drive around the City and even park it at his TOS major slot. And this is the same people that got those officers in trouble back in 1988. So if the community and the officers know the kind of -- the convicted felons that frequent that place together with the elected officials from different jurisdictions and they see these cops hanging out there in which they have roll calls there, okay -- one of the commanders, Commander Roque sits there all day and has people go there -- that's within his area. And then what broke the camel's back is those tourists that were robbed, who were burglarized in Versailles, that lost all their luggage, okay, Commander Roque took these people to that cigar company, called the Mayor, Armando Gutierrez, and the press, okay -- and maybe the Mayor did not know what kind of people those people are. So if anything, the Mayor should be concerned where he's going. And this is one of the main reasons why perception's important. Aside from that, there is an investigation -- Chair Gort: Okay, okay. Mr. Chavez: Andl want to go ahead and move it along. Mr. Milian: Judge, I mean, I've got -- been cut off -- some -- very abruptly on occasion trying to ask very simple questions, and all I've been hearing -- Vice Chair Carollo: Speak into the mike. Mr. Milian: -- for quite a while is a narrative. Vice Chair Carollo: Speak into the mike, please. Mr. Chavez: And at this point -- Mr. Milian: My apologies. But the bottom line is that -- thank you. My apologies. But the bottom line is that I've been cut off for asking direct questions and questions on cross-examination that were very specific and called for yes or no answers. We're listening to an City of Miami Page 274 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 entire narrative now of anecdotal evidence that is not the subject of this particular hearing. And again, it doesn't go to the relevant issues in this particular matter. The chief has already answered those questions regarding that cigar shop where he was photographed at with the owner. I'd like to get back to the issues of the termination. I think that would be appropriate. Mr. Chavez: And ultimately, I will go ahead and end my examination at this point. Major Alvarez: But that photograph did not occur in that place. I need to clar. A lot of this stuff that the counsel brought up is not true, and I need the Commissioners to know that. Mr. Chavez: You have knowledge about the photograph? Major Alvarez: I have knowledge about the photograph. I am an investigator, okay. And that's -- and the only thing else I want to say is that there is additional investigations that I cannot do, the City ofMiami cannot perform. I have approached other agencies, and they are the ones working those investigations with our help. All those files are in those agencies, okay. That's why when interim chief said that there was no investigation, he has no idea what he's talking about, okay. This photograph was at the beginning of 2010 where the chief had just been promoted, okay. This was the Burn Notice party, okay. Andl have to explain why these photographs came out. Mr. Chavez: Where was that photograph taken? Major Alvarez: At the Burn Notice party. Mr. Chavez: It was not at this location --? Major Alvarez: Correct. Mr. Chavez: Okay. And is that photograph appeared to be doctored? Major Alvarez: No. It's a good photograph. Mr. Chavez: Weren't there more individuals on the photograph? Major Alvarez: Oh, there's other individuals. Because this was the Burn Notice that every City director got invited to, okay. That was the first -- one of the first events the chief went to, okay, with his wife. He -- this guy had a cigar roller there and he happened to be this and he jumped in the photo op. At no time was this involving anything else. There's also on this blog a mention of an award that the chief gave these guys. That is not true. When the two County officers were shot and killed, we did a fundraiser, Assistant Chief Siegliey, with assistance of the County. We had lots and lots of businesses and private sector people donate. Everybody that donated got that certificate that they're talking about here, but they changed it on this blog. This blog is run by Nelson Orta. And the curious thing about the date that counsel was so nice to bring out, okay, August 11. Notice the date, August 11. That came out in the afternoon. August 11, I sat down with Mr. Martinez, andl explained to him exactly what I explained to you all now. I told him that this was sensitive information that nobody should know about, okay. That was around -- between -- I spoke with him from 7: 30 to 9: 40, okay. I had to drive to my office -- I mean to central to teach a class on Internal Affairs. Before I got there, it was already on legal affairs. Four hours later, this blogger, okay, this blogger here puts out all this information about Cuban Crafters. I was shocked that the only person that had mentioned this information to, outside people in my staff and the Chief of Police, was the Manager. Andl asked him to keep it to himself. Chair Gort: Let me tell y'all something. Don't be shocked 'cause I've seen a lot of those blogs City ofMiami Page 275 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 that where we have meetings and we didn't -- I haven't stepped out of the meetings and it's already in one of the blogs. Major Alvarez: This is the -- Chair Gort: So don't be shocked. Major Alvarez: -- original picture, okay. Now, this blogger is financed by Mr. Armando Gutierrez. He's financed by the cigar company. And he's been constantly battling the chief with the maquinitas, just like Mr. Milian has, okay. And you know, in order -- Chair Gort: Okay. Major Alvarez: -- to get the truth, you need to have the time to listen to it, okay. I would not present anything that is not a fact, okay, not like Mr. Milian, who has demonstrated to the public on radio shows and radio stations that the police, the chief uses the maquinitas as a shield and a sword to hide his negligence, that we are constantly -- no. I need to say this. Chair Gort: No. Wait a minute, wait a minute. Major Alvarez: Okay. Mr. Milian: (UNINTET,TIGIBT,F), but you know (UNINTELLIGIBLE). Chair Gort: You'll get the chance to rebuttal. You'll get your chance to rebuttal. Mr. Milian: But it's not rebuttal. Personal attacks on counsel -- Ms. Thompson: Chair, this -- Major Alvarez: I'm not attacking, sir. I'm speaking the truth. Ms. Thompson: -- this is not being recorded. Mr. Milian: I am not -- Ms. Thompson: It's not -- Major Alvarez: I am speaking the truth. Chair Gort: You got to record it. Mr. Chavez: Mr. Chair, it's not being recorded. Mr. Milian: I am not the subject of this litigation. I mean, I could stand here and justin, or not justify myself on what do on daily living, and I've done that to you when you quizzed me about my representation andl went above and beyond in giving you assurances. Now I've been attacked by a major in the Police Department for being a litigator in a process before this Commission. Now, Commissioner Sarnoff, you reminded me about judges letting you get away with that. I don't think a judge not here, but in all of this hemisphere would allow one of the attorneys to be attacked by a witness who's gone on a 20-minute rampage in a narrative that's not responsive to a single question. Now if that's the way it's going to be conducted, I would have asked for some reciprocity, but I abided by your rules andl cut off my cross-examination. I think it's only fair, in keeping with the decorum of this forum, to let's get back on track. City of Miami Page 276 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Chavez: Mr. Chairman -- Major Alvarez: I guess the truth hurts. Mr. Chavez: -- I have concluded my examination. Chair Gort: Okay. Questions? Mr. Milian: Oh, yes, I have many. You are a major in the Police Department, isn't that true? Major Alvarez: Yes, sir. Mr. Milian: But your actual rank is that of a sergeant, isn't that also correct? Major Alvarez: That's my civil service rank, yes, sir. Mr. Milian: Okay. And as a matter of fact, when you have been transferred from your position in Internal Affairs, you were transferred to a position of a major, isn't that true? Major Alvarez: Yes, sir. Mr. Milian: And you were transferred to the same position that would give a major the same duties, responsibilities, and obligations as you had when you were in Internal Affairs; you only changed assignments. Isn't that correct? Major Alvarez: No, sir. Internal affairs I was leading, controlling sensitive and delicate investigations. As a patrol sergeant -- as a patrol major, okay, I would not be doing any investigations. I would just be doing paperwork. Mr. Milian: Major Alvarez -- Major Alvarez: And I did not receive any transfer papers. Mr. Milian: -- you said that before, but that was not my question to you. You were transferred to another position of equal rank with that of a major, isn't that true? Major Alvarez: That part is true. Mr. Milian: Okay. And isn't it -- Major Alvarez: Equal duties, no. Mr. Milian: Well, you've been a member of the Police Department for a long time. Isn't it a fact that no member is entitled to choose what assignment he has or where he's transferred to as long as he is not demoted, denigrated, stripped of his operational responsibilities and duties as a police officer? Major Alvarez: Oh, I'm not complaining about the transfer or crying about it. I'm just saying the reason for it is really, really shoddy, I mean. Mr. Milian: Well, the bottom line -- Major Alvarez: And somebody should look into it. Mr. Milian: -- is that -- I think you've made the point -- but that wasn't the question that was City of Miami Page 277 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 asked. You have not suffered any demotion in your rank? Major Alvarez: I answered that already, sir. Mr. Milian: Okay. Well, you may have answered it, but the truth of the matter is, you started talking about you were doing IA and now you're doing another assignment. But you do not have a right to choose your assignment at the Police Department, do you? Major Alvarez: Oh, that's correct. Mr. Milian: Okay. Now you were talking about this tobacco shop. How long have you known about -- you said a partial owner was a convicted felon -- this tobacco shop and its nefarious connections? Major Alvarez: Oh, now you want me to talk about it. Great. Mr. Milian: You know, major -- Major Alvarez: Okay. No. He open -- Mr. Milian: -- nobody asked you to make -- Major Alvarez: -- the door. Mr. Milian: -- an editorial comment. Major Alvarez: Okay. Well -- Mr. Milian: But you've been talking about it for 20 minutes, andl would appreciate if you would answer the question. Major Alvarez: I will answer the question. Be more than happy to. I'm -- Mr. Milian: Well, I would like -- Major Alvarez: -- but you stopped me the last time I tried to answer it. Mr. Milian: Well, you didn't answer it. You tried -- Major Alvarez: I am going to answer it now. Mr. Milian: Well, don't interrupt me. Listen to the question. Major Alvarez: I already know the question. Mr. Milian: How long have you known about this tobacco shop? Major Alvarez: Well, like I said, in October of 2010 is when we first realized what was going on when we arrested a guy by the name of Lazaro. Mr. Milian: I heard you, but it calls for a date. Major Alvarez: No, sir. I got to finish my question -- I mean, my answer. Mr. Milian: No, you don't have a question to ask. It calls for a date. City of Miami Page 278 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Major Alvarez: I have to finish my answer. Mr. Milian: It calls for a date. Major Alvarez: Okay. In October -- Mr. Milian: Would you answer the date? Major Alvarez: -- I think -- I'm not a hundred percent sure. It was like October 28 or the 18, okay, a person by the first name of Lazaro -- I don't have his last name -- was arrested selling kilos to our officers. Mr. Milian: Okay. Major Alvarez: That person -- let me finish the answer. Mr. Milian: But that's not the answer. The answer calls for a date. Major Alvarez: Sir, you can't tell me what my answer is. Mr. Milian: Yes, I can, actually. Major Alvarez: I'm going to finish -- Mr. Milian: This is cross-examination. Major Alvarez: -- my answer, unless I'm stopped. Mr. Milian: Mr. Chairman, it calls for a date. It doesn't call for a narrative. Chair Gort: The date, October. Mr. Milian: Of 2010. Since that date, how many officers have been disciplined from the City of Miami for having visited that tobacco shop? Major Alvarez: Sir, like I -- Mr. Milian: The question is simple. Major Alvarez: I haven't even started. Mr. Milian: Answer the question. Major Alvarez: I haven't even started. Mr. Milian: How many officers have been disciplined one, two, three, four, or five? Major Alvarez: I cannot answer the question that way. So I will say nobody has been disciplined. Mr. Milian: That's the answer, isn't it? Major Alvarez: Okay. Sir -- City of Miami Page 279 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Nobody has been disciplined. Major Alvarez: -- let me finish my answer. Mr. Milian: No. That's the answer. Chair Gort: Wait a minute. Hold it. Mr. Chavez: Mr. Chairman, can you please assume -- Major Alvarez: Hey, I'm not going to put up with this. Mr. Chavez: -- control of the proceedings. Major Alvarez: Okay. Chair Gort: Beg your pardon? Mr. Chavez: Please assume control of the proceedings. Chair Gort: How can I --? Look -- Mr. Chavez: We're 15 hours in. Chair Gort: It's 1: 34. We've been here since 9 o'clock in the morning. We've been sitting here very patient. Mr. Chavez: I know. Chair Gort: And at this last moment, at 1 we start bringing in new people. Go ahead. Mr. Chavez: Again, because of the procedures -- Chair Gort: Yes, yes. I know. Mr. Chavez: -- I just -- I want to limit the scope to the questions I asked. Chair Gort: Okay. Mr. Milian: Well, the question was raised about the tobacco shop, and I'm going on with the tobacco shop. So the answer, major, isn't it true that no officer from the City ofMiami Police Department has been disciplined for visiting that tobacco shop? True or not? Major Alvarez: You want me to answer the question? Mr. Milian: Yes. Major Alvarez: Or do you want me to give you what you want to hear? Mr. Milian: No. You want to respond with a narrative, and it calls for a yes or a no. You can't answer the question with a yes or no? Major Alvarez: Sir, in my 31 years, every court I've been to, I'm always allowed to finish my answer. City ofMiami Page 280 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Well, in every court I've been to, you have to respond to the question that's asked. If not, you're being evasive and trying to hide the truth. Major Alvarez: No, sir. I will -- Mr. Milian: Can you give us the name -- Major Alvarez: -- answer -- Mr. Milian: -- of a single officer that has been disciplined for going to the -- Major Alvarez: -- the question -- Mr. Milian: -- tobacco shop? Commissioner Suarez: Mr. Chairman, ifI may. He's actually absolutely correct. Chair Gort: Gort I know. Commissioner Suarez: On cross-examination you can ask leading questions that require a yes or no answer. That's the purpose of cross-examination. That's what differentiates it -- I'm sorry. This is kind of -- getting kind of late -- from direct examination where the witness can expound upon his answers and you ask open-ended questions. So you know, let's be fair here. Let's -- Major Alvarez: Okay. Commissioner Suarez: -- do things right, please. Major Alvarez: Okay, sir, in order to answer the question, I need to know what is your definition of discipline. What do you mean by discipline? Mr. Milian: Any kind of discipline, Major Alvarez, whether it was a suspension or a termination, or the member was processed and disciplined for cavorting with convicted felons or those known to associate with convicted felons. Major Alvarez: Okay. There was no discipline as per what the attorney described. There's other things, but there's no discipline. Chair Gort: There's no officer. Mr. Milian: Now the question here is very simple. An Internal Affairs and City ofMiami Police Department associating with known or convicted felons can be a matter of investigation and discipline, isn't that correct? Major Alvarez: Yes. Mr. Milian: Okay. Has the chief ever been investigated for associating with the owner of that shop? Major Alvarez: Which chief? Mr. Milian: Your chief Exposito. Major Alvarez: No. City ofMiami Page 281 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Okay. And in addition to that, has any general order been admitted by the City of Miami Police Department through the channels of the Internal Affairs, through the general command at roll call telling officers specifically that they are not to go to this place and that the place is off limits? Major Alvarez: It is okay for an offi -- no. It is okay for an officer to stop and get a cigar and leave. But it's not okay when you congregate, do roll calls there, okay, bring the media, and bring the elected officials and putting them in harm's way. Mr. Milian: Major Alvarez, has any officer or any supervisor for the City ofMiami Police Department been disciplined for conducting what you say was a roll call at that particular location? Major Alvarez: No. Mr. Milian: Has any officer who participated in the fundraiser for the officers that were slain in the line of duty been investigated or disciplined for having participated at that fundraiser at the tobacco shop? Major Alvarez: Sir, the fundraiser was not at the tobacco shop. The fundraiser was at the PBA (Police Benevolent Association) hall on Northwest 14th Street. Mr. Milian: Let me ask you this. Isn't it true that fundraisers and retirement parties, including ones that the chief attended at that tobacco shop, took place within the last year? Major Alvarez: I do not know when the chief attended. And the fundraiser, again, did not occur there. Mr. Milian: In your position of Internal Affairs, you're directly responding to the orders of the chief isn't that correct? Major Alvarez: Correct. Mr. Milian: And the chief is the one who put you as head of Internal Affairs, correct? Major Alvarez: That is correct. Mr. Milian: And you had no prior experience in running Internal Affairs before the chief put you in that slot, correct? Major Alvarez: I had never set foot there. Mr. Milian: And were you ever the subject of any disciplinary action by your department? Major Alvarez: Yes, I was. Mr. Milian: Now you talked about files that were removed from the City ofMiami Police Department. If I'm not mistaken, I heard you say that some files were removed from there, correct? Major Alvarez: Oh, yes. Mr. Milian: Okay. How many files, approximately, were removed? Major Alvarez: Okay. There's no way of us being able to say a number of files. When I took City ofMiami Page 282 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 over Internal Affairs, I noticed that our vault -- we have a vault where files are kept -- was in total disarray. I noticed there's a lot offiles missing. A lot could mean -- one to me is a lot, but it could be 20, 10. We haven't been able to identi. It was more important, first, to get the unit running, correct the SOPs. We were bombarded with investigations, because we opened up the public corruption unit as soon as we took up -- and just when the Mayor's office, we -- everybody will go to him because of his transparency and they would bring this infor -- those investigations to us. So it took me almost a year to be able to get somebody and assign them to the vault and -- which we're in the process of trying to reconstruct those missing files. Because in order to destroy files, you have to go through a very extensive procedure. We're still trying to destroy files that the Department was working on since 2008, and the Clerk's office is the one who can -- the only person that can destroy files in the City ofMiami. Mr. Milian: Okay. Major, the question was very simple. Do you know the number offiles, yes or no? Major Alvarez: No. Mr. Milian: Okay. Did you remove any files from the Internal Affair vaults? Major Alvarez: No. Mr. Milian: And have you transferred any files from the Internal Affair vaults to any other agency? Major Alvarez: I can't answer that. Mr. Milian: Under what privilege? Major Alvarez: I refuse to answer. Certify the question. Mr. Milian: Well, there's no certification process here. Chair Gort: My understanding, you answer that you had taken some files out and you took them to other agencies. Major Alvarez: No. What said is that when we work with other agencies, they keep the files. Chair Gort: Okay. Major Alvarez: That's what I said. Chair Gort: All right. Mr. Milian: And let me ask you this, major. Have you opened up any investigations on Commander Roque in the Internal Affairs unit? Major Alvarez: I'm not allowed to answer that question. Mr. Milian: And who gave you the order not to answer that question? Major Alvarez: It's not an order; it's part of policy and procedure. Mr. Milian: Which policy and procedure? Could you cite it for the record? Major Alvarez: Excuse me? City ofMiami Page 283 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: What policy and procedure? Could you cite it for the record? Major Alvarez: I can't because then I will be giving you an answer that I can't give you publicly. Mr. Milian: I'm asking you for the policy and procedure, not for the file, not for the name. What is the policy and procedure that doesn't allow you to tell us if you've opened up an investigation? Major Alvarez: Exactly. IfI give you the answer or the policy and procedure, then you'll know what I'm doing. Mr. Milian: Okay. Major Alvarez: So I can't answer that. Mr. Milian: Policy and procedure. You can't cite in any of the policies and procedures of the City ofMiami Police Department, correct? Major Alvarez: Well, there's also state law and federal law that covers that. Mr. Milian: That's right. Major Alvarez: Okay. Mr. Milian: Let me ask you this. Did you open up any investigations on Assistant Chief Brown? Major Alvarez: No. He has never been investigated. And as a matter of fact, the issue you brought up about the previous investigation -- andl want to clarify -- yeah, it is going to be inconclusive. His rights were violated under Chapter 12. Mr. Milian: Inconclusive. Major Alvarez: Inconclusive. That means that there's no find of guilt and there's no found of innocence. It was inconclusive. And yes, I believe andl agree with Carlos Avila that he was violated. His rights were violated by the previous administration and that is not going anywhere. Mr. Milian: And major, one question about Commander Perez. Have you opened up any investigations on Commander Perez? Major Alvarez: I can't answer. Mr. Milian: All right. At this time let me ask you this. Insubordination, is it an offense punishable by the policies and procedures of the City ofMiami Police Department? Major Alvarez: Yes. Those procedures -- it is a violation of those procedures by the departmental orders, which, by the way, the Manager has no influence on departmental orders. Departmental orders are signed and approved by the Chief of Police and the joint chiefs of police, and also CALEA (Commission of Accreditation of Law Enforcement Agencies), which is certification -- a nationwide certification department that comes in and sets the operating standards for the Police Department. Not all Police Departments in the state -- in the United States are certified by CAT ,FA. That brings -- if you get certified by CALEA, you get a lot of benefits that other agencies don't. They come in, they look at our departmental orders, and they're the ones who mandate it. Mr. Milian: Major, we didn't ask you about CALEA or Hialeah. We asked you simply the one City ofMiami Page 284 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 question. Major Alvarez: Sir, you're trying to be funny? Mr. Milian: No. I think you're trying to be funny by not being responsive. Major Alvarez: Because I'm very serious what I'm talking about. Chair Gort: Okay. Mr. Milian: Well, you're not, because you've been making jokes for a while. Major Alvarez: Okay. It's very important. Chair Gort: Hey. Mr. Milian: Answer the question. Is insubordination a violation of policies and procedures, and can you cite the policy and procedures that it is a violation of? Major Alvarez: I already answered that, andl cannot cite it; I don't have the book in front of me. Mr. Milian: Okay. And is insubordination an offense that can lead to termination of a member of the police force for not obeying a lawful and reasonable order? Major Alvarez: Yes, it could. Mr. Milian: And you agree with us here that it's the City Manager who has the authority to supervise and control the actions of police chief in the City ofMiami Police Department? Major Alvarez: The police chief yes. Mr. Milian: Okay. Major Alvarez: The operating, no. Mr. Milian: No further questions. Chair Gort: Okay. Mr. Chavez: No questions. Chair Gort: That's it. Any questions anyone? Major Alvarez: Thank you. Chair Gort: Okay. Thank you. That's it. Everybody spoke? Close now the discussion. Yeah. Mr. zMilian: I think my colleague andl were going to respectfully request to have summation, but I notice one of the members of the Board is not present at this time. Mr. Chavez: I would do a brief brief summation. We've been at this for 15 hours. I defer to Mr. Chairman on the point. Commissioner Suarez: May I, Mr. Chairman? City ofMiami Page 285 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Sure. Commissioner Suarez: How much time do you guys need for summation? Mr. Milian: Whatever you think is reasonable, Commissioner. I mean, I know everybody -- it's late, but I think the issues are very important than while -- Commissioner Suarez: Give us -- Mr. Milian: Perhaps -- Commissioner Suarez: -- an idea. We can put it on the clock. Mr. Milian: Ten, fifteen minutes. Commissioner Suarez: We can put it on the clock. I mean, we have a -- we have the ability to put it on the clock. Vice Chair Carollo: And Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: See, at the same time, I think this is extremely important, andl know it's late, but I don't want to now limit -- Commissioner Suarez: Yeah, I understand. Vice Chair Carollo: -- you know, to the time frame and so forth. I -- listen, I know it's late, but it is extremely important. I'm even questioning if we're actually going to take this vote at, you know, 2, 3 in the morning, and how prudent is it for us to take the vote at that time of the morning. Commissioner Spence -Jones: Not at all. Vice Chair Carollo: I'm actually very close to asking -- Commissioner Spence -Jones: I'm very tired. Vice Chair Carollo: -- you know, we already on Saturday. Can we take a recess until, you know, 9 a.m. or 10 a.m. and reconvene or so forth? And again, I abide by the will of this Commission. But the bottom line is, you know, I'm actually -- you know, have sat back quietly and have observed quite a bit, and I'm saying, you know what? I don't even know if it's, you know, maybe the most prudent to take a vote at 1: 45 now, whatever, you know, summation -- what's it called, summation? Commissioner Sarnoff. Closing statements. Vice Chair Carollo: Closing statements is going to take and so forth, whether it's 2 or 3 in the morning, so -- Mr. Milian: Well, I would say one advantage, Commissioner, is that -- Vice Chair Carollo: And in all fairness -- Mr. Milian: -- things are freshest. City of Miami Page 286 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Vice Chair Carollo: Okay. In all fairness, I do want you to have as much time as possible, both sides. You know, even a jury -- and we're acting quasi judicial -- once they hear all testimony, they deliberate. I understand. We don't have to necessarily deliberate 'cause we're not going to go back in a room and it's going to be a violation of sunshine, but at the same time, you have some time to think of and intake and examine what has been given and, you know, ask any further questions if need be. So I just want to put that -- I don't know how my colleagues feel, but you know, I just want to make sure that we don't start cutting any corners now because it's late. And second of all, that when we take a vote, we do it with, you know, prudence and, you know, with a right state of mind. Commissioner Spence -Jones: Mr. Chairman. Chair Gort: Yes. Commissioner Spence -Jones: So is the thought to do both closing statements now? Mr. Milian: Yes, ma'am. Chair Gort: Yes. Mr. Chavez: That's my thought. Commissioner Spence -Jones: And you want us to retain all that? Mr. Milian: I think you have a capacity for retention of the important issues. Commissioner Spence -Jones: Oh, you do? Mr. Milian: Yes, ma'am. Commissioner Spence -Jones: The man that wakes up after 12. Mr. Milian: That could be quite a virtue. Commissioner Spence -Jones: Well -- I mean, I think -- Chair Gort: What's -- Commissioner Spence -Jones: -- this is too important not to do it right. That's just my opinion, but I'm one vote. Commissioner Sarnoff. So is it the will of this Commission to either come back tomorrow or push this to Thursday? Mr. Chavez: Today is the fifth day. We're already at Saturday. Vice Chair Carollo: Yeah. Commissioner Spence -Jones: Mister -- I'm sorry. Ms. City Manager [sic], now is this cause for -- it ain't -- it's not a hurricane outside, but what -- is this cause for --? Ms. Bru: I think that under any interpretation of the charter, it would be more than reasonable, after having been here since 9 o'clock in the morning, to recess -- City of Miami Page 287 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Come back on Monday. Ms. Bru: -- and continue at another reasonable time and date to hear the closing arguments and then render judgment. I don't think that it's a violation of the Charter and the time frame stated in the charter. Mr. Chavez: IfI may be heard? Chair Gort: Yes, sir. Mr. Chavez: I understand it's late. I think we're willing to do summations and come back on the fifth day, which is hours from now. But there is no act of God precluding us or requiring us to push this beyond the five-day provision required by the Charter. The Charter is very clear under Section 26, and ultimately, it says, shall render judgment thereon within five days. Andl know I'm paraphrasing, butt know I'm close. And ultimately, that means Saturday, today. Commissioner Spence -Jones: Madam City Attorney, what's your thoughts on this? Ms. Bru: Again, I don't think that it would be unreasonable to recess and convene again either tomorrow -- Mr. Chavez: Just -- if it's gone this late -- Ms. Bru: -- Monday. You know, tomorrow is Saturday. Sunday, I -- you know -- I don't think it's unreasonable. I don't think it's unreasonable for this Commission to say, you know, we want to come back, you know, with afresh mind to be able to make this decision. Mr. Chavez: It's with -- Chair Gort: Right. Okay, what's the wish? Mr. Chavez: I count Tuesday because that's the actual day of the suspension and it's within five days. Chair Gort: Question. I'm not an attorney so I need to ask you a question. I see on TV all the time where they recess when the jury gets all the information and they come back. Does it say we have to take a decision within five days or do we start procedure within five days? Vice Chair Carollo: And render judgment? Mr. Chavez: And render judgment. Chair Gort: And render judgment. Ms. Bru: It does say -- Commissioner Suarez: I read it the same way as counsel. Ms. Bru: -- to have a hearing and render the judgment -- and render judgment thereon. Commissioner Suarez: I read it the same way as -- Vice Chair Carollo: However, that does not mean that we cannot take a recess and continue later on -- I guess it is morning -- later on this morning at 9, 10, 11, 12, 1, 2. City of Miami Page 288 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: I know you want to be here today. Vice Chair Carollo: No. I'm just saying, because then it will -- it still will give us some time -- Commissioner Spence -Jones: But counsel just said that Tuesday would be that day, right? Vice Chair Carollo: No. Mr. Chavez: I count -- starting Tuesday, the day of the actual suspension, 1, 2, 3, 4, 5. Today is Saturday, today, after midnight. Today is the five day. Commissioner Spence -Jones: I just want my City Attorney to give me like the fat -- the final opinion on this issue. Your final opinion on this issue? It's the same? Ms. Bru: I'm sorry. The final opinion is that -- what is it that is in question now? Mr. Chavez: I don't know -- Commissioner Spence -Jones: Counsel, do you have a problem with us -- I mean, she's saying basically -- Mr. Chavez: I don't have -- Commissioner Spence -Jones: -- we could push it to another time. Mr. Chavez: We could push it to another time -- Commissioner Spence -Jones: You guys could come -- Mr. Chavez: -- as long as it takes -- Commissioner Spence -Jones: -- with afresh mind -- fresh minds, do your closing arguments -- Mr. Chavez: And if that is the will of the Commission to push it to another time, but I believe we're up on the fifth day. Commissioner Spence -Jones: Right. And what she's just telling you, counsel, is that according -- we've already started the hearing, and even Commissioner Gort mentioned it is as well, that we can push it to -- Ms. Bru: We -- Mr. Chavez: Yeah. But I understood the City Attorney to say reasonable to another day, and it's got to be on Saturday because today is the fifth day. So if we recess till 10: 30, 11, 12 o'clock, basically 10 hours, we're on the fifth day. Commissioner Spence -Jones: Well, right. Counsel keeps saying the same thing over and over again. And what I'm saying to you is she's saying something different. Mr. Chavez: Okay. Ms. Bru: The fifth day -- Commissioner Spence -Jones: Come on, now. City of Miami Page 289 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Ms. Bru: -- is Monday. Mr. Chavez: I respectfully disagree. Ms. Bru: It's Monday. Commissioner Spence -Jones: You can't count a Saturday. We don't count Saturday. Mr. Chavez: Typically -- Chair Gort: Don't count weekends. Vice Chair Carollo: I think the issue now is whether it's calendar days or business days. Ms. Bru: Well, we have a rule of construction in our code that says that when a -- it's in the code Chair Gort: That's right. Ms. Bru: -- when a computation of time provision, that if it's less than seven days, you don't count the intervening holidays or the weekends. So it's a rule of construction that we use to interpret our charter provisions. Mr. Chavez: Well, ultimately, I believe that the Charter would have provided those time provisions. It's very strict under Section 26, andl would object to that proceeding. Chair Gort: All right. Commissioner Spence -Jones: Okay. Well -- Commissioner Suarez: Mr. Chairman. Chair Gort: Yes. Commissioner Suarez: I think -- to act in an abundance of caution, I think this is a very important hearing andl think this -- we should do it within five days -- from no later than five days. From Tuesday -- I think this happened, what -- the suspension was given Tuesday, 8 a.m.? Vice Chair Carollo: Eight thirty. Commissioner Suarez: Eight thirty. Okay, Tuesday, 8: 30 to Wednesday 8: 30 is one day. Commissioner Spence -Jones: Well, I have a conflict tomorrow. Commissioner Suarez: Oh. Commissioner Spence -Jones: Okay. I have a conflict. Commissioner Suarez: Okay. Can I just read out the number of days, 'cause I think we may actually be -- I mean -- I don't know, 'cause that would be pushing it -- on Sunday. Yeah, you're right. Mr. Chavez: (UNINTET,TIGIBT,F) Commissioner Suarez: You're right. Yeah, Tuesday 8 a.m. to Wednesday 8 a.m. or 8:30 is one City of Miami Page 290 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 day, Wednesday to Thursday is two days; Thursday to Friday is three days; Friday to Saturday is four days; Saturday to Sunday, 8 a.m., is five days. Commissioner Spence -Jones: So -- Chair Gort: We're talking about calendar days. Commissioner Spence -Jones: -- that's what we have -- Commissioner Suarez: Yeah. Commissioner Spence -Jones: -- but that's why we have counsel here. She's saying that according to -- Commissioner Suarez: I understand. Commissioner Spence -Jones: Please, tell us -- give it to us in writing. Let us know something. Mr. Chavez: And, again, I start counting on Tuesday being the first day since that's when he was suspended. So Wednesday, two; Thursday, three -- Chair Gort: No. That's 24 hours, right? Mr. Chavez: Okay. Well, the first day of the suspension was actually Tuesday. He was suspended at 8: 30 in the morning -- Chair Gort: Right. Mr. Chavez: -- on Tuesday. Chair Gort: Right. Mr. Chavez: So that's his first day. Wednesday, 2; Thursday, 3; Friday, 4; now we're beyond midnight; Saturday, 5. Chair Gort: Now, not on weekends. Commissioner Spence -Jones: Not on weekends. Chair Gort: Weekdays. Mr. Chavez: Well, I understand that, but we're having an issue as to the charter expresses and specifically states within five days. It's not really as to other time provisions of the code. I would suggest do not apply. Commissioner Spence -Jones: Okay, counsel's saying they're comfortable. Mr. Chavez: I'm sorry, ma'am? Chair Gort: Okay. Commissioner Spence -Jones: Counsel's saying they're comfortable. Chair Gort: What's the wish of this Commission? City of Miami Page 291 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Our City Attorney is saying they're comfortable. Mr. Chavez: Well, I would respectfully disagree with the opinion, and that might be something that results in an argument before the circuit courts with regards to a deprivation of procedural due process. I just -- in an abundance of caution, I have to lay a proper predicate. I do. Commissioner Spence -Jones: So how do you want me to handle this ifI have a conflict for tomorrow; just not show up? Chair Gort: So do I. Mr. Chavez: I understand that the timing provisions are what they are, but they weren't timing provisions of our choosing. Commissioner Spence -Jones: Okay. But I want to be clear. Mr. Chavez: So there's got to be a decision taken on the point and then -- Commissioner Sarnoff. Here's how this works. I can't believe nobody's taken charge. Here's how this is going to work. You're going to preserve your rights and that's what you're doing. Mr. Chavez: Correct. Commissioner Sarnoff. I gotcha. You're going to pick a day -- could be two weeks from now for all care, because he's already preserving his rights. But if you want to do it Monday, if you want to do it Tuesday, if you want to do it Wednesday, if you want to do it Thursday -- Vice Chair Carollo: We're not doing it Thursday 'cause that's budget meeting, plus we have the regular Commission meeting, plus budget meeting, so I don't think -- Chair Gort: That's why I'm -- Commissioner Sarnoff. Okay. Vice Chair Carollo: We're not going to do it lunchtime on Thursday. Chair Gort: -- asking what is the wish of the Board. Commissioner Sarnoff. Is everybody good on Monday? Chair Gort: Monday is -- Commissioner Sarnoff. Is everybody good for Monday? Chair Gort: -- fine with me. Mr. Milian: Anybody can preserve any objection they have. My -- Commissioner Sarnoff. I gotcha. Mr. Milian: No, no. You're right, Commissioner. I mean, you're absolutely correct. Commissioner Sarnoff. It's actually good for him. Mr. Milian: No, no. City of Miami Page 292 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. If he's right, we're all wrong. Mr. Milian: But I don't know because of the way the code and it's subject to interpretation. It may preserve a point on appeal in a subsequent proceeding. The Commission has to have -- ask themselves one question right now: Do they want to build up an error in the decision that is made, or do they want to foreclose that possibility. Our courts are always subject to interpretation. And they may -- Commissioner Sarnoff. There's not a court -- and you would agree -- you andl will be in agreement on this, trust me. Mr. Milian: I hope. Commissioner Sarnoff. There's not a court in the United States that would have sat here the length we've sat here. There's no judge I know -- King, not Highsmith, not, you know, Genden, none of them would have sat here this length of time. Mr. Milian: Commissioner, you're probably right. But the problem is that opposing counsel's making the argument that the way that the Charter is written specifies within five days. And even though there are terms of reasonableness associated with that terminology, that could possibly be interpreted by -- Commissioner Sarnoff. And I'm not denying it. And this is -- I think you andl are going to agree. Mr. Milian: Yes, sir. Commissioner Sarnoff. I'm not deny -- he's going to preserve those rights, because that's an important right for his client. The City Attorneys making an opinion that I guess being tired I'll buy into as well, because I don't see how anyone's going to render a very smart judgment here. I don't even know what I could say right now, and I usually have a lot to say, but I'm kind of numb . I want to hear your closing. You've been good, truthfully. Mr. Milian: Thank you. Commissioner Sarnoff. He's been very good, truthfully. Andl want to do it with something of a clear mind. And if it means he preserves his right, may even mean you preserve your right. Maybe you have an argument that says, you know what; I'm going to take this to court because I don't like the outcome of what the Commission did andl think they jurisdictionally ran afoul of the time provision. Mr. Milian: I know Commissioner Spence -Jones said that tomorrow would be a difficult for her to conclude. Commissioner Spence -Jones: I already have a conflict. Commissioner Sarnoff. I think Monday morning, gentlemen and ladies [sic]? Vice Chair Carollo: I don't have a problem with it. I'd like to see what's the will of the Commission. But I don't have a problem with it. But just for the record, your colleagues noticed as far as you not talking as much and so forth, so -- Commissioner Sarnoff. I tried to calm -- City of Miami Page 293 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Now we know what time to have the meetings. Vice Chair Carollo: I'm okay with Monday. Chair Gort: Monday. Commissioner Sarnoff. Nine o'clock? Commissioner Suarez: I have to state for the record that I will make myself available at any hour, at any minute, between now and the end of the five-day period. I -- Commissioner Spence -Jones: Wonderful. Commissioner Suarez: No. I know. And everybody's entitled to their own, you know, conflict schedules, perspectives, and I'm not trying in any way, shape, or form to denigrate anybody's -- or minimize anyone's schedule or conflicts or anything like that. I just -- the way that I perceive my duty is that have a duty to render judgment because of -- my perspective is because of the chief. I have a duty in following the charter, which I have made many references to throughout today. I feel like I have a duty to be available to render judgment within five days. And I, in an abundance of caution, because of the importance of this matter, would just -- in an abundance of caution, would take the most conservative approach for myself and so I -- if the Commission decides -- the Chairman decides -- if, for whatever reason, anything changes, just give me a call, I'll come back. I'm available between now and the end of that period and any other time. Commissioner Sarnoff. Do we have your pager? Commissioner Suarez: What's that? Commissioner Sarnoff. Do we have your pager? Commissioner Suarez: I don't have a pager? Chair Gort: Do you have a phone? Commissioner Sarnoff. You don't even know what a pager is. Commissioner Suarez: And Commissioner, I'm sorry, but I don't have children, so -- Chair Gort: He doesn't know. He doesn't have experience of that. Mr. Milian: Well, I think if it's the will of the Commission -- Commissioner Suarez: So I know he has a young one. I think you have children. Mr. Milian: -- from what I'm hearing to -- Commissioner Spence -Jones: I have children, yeah. Commissioner Suarez: I know. So I apologize. I don't have children. I have -- Chair Gort: I think it's the wish of -- the Commission is continue this till Monday at 9 o'clock in the morning. Mr. Chavez: Okay. Please note my objection for the record. I'm just very cautious thatl do not want to waive any potential rights on behalf of my clients in this regard -- City of Miami Page 294 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Nope. Mr. Chavez: -- and on this issue. Mr. Milian: And please note for the record that it's 2 a.m. on Saturday morning at this time. Commissioner Sarnoff. So we're just going to go to recess, right? Ms. Thompson: Yes. Chair Gort: We're going to recess until Monday at 9 o'clock. [Later..] Chair Gort: (INAUDIBLE) left on Saturday at 2 o'clock 30 in the morning. My understanding is we agreed to have the closing statement by each of the attorneys present, and then we'll close and make our decision. Thomas Equels: Mr. Chairman, if I may? Chair Gort: Yes. Mr. Equels: Before beginning, I represent Cuban Crafters. Mr. Chavez: Excuse me. Mr. Equels: Andl'd like -- Mr. Chavez: Mr. Chairman. Chair Gort: Yes. Mr. Chavez: Was there permission obtained for this gentleman to speak, and may he identify himself? Chair Gort: No. Mr. Equels: That's what I'm asking -- getting ready to ask for. Chair Gort: As far as I'm concerned, we discussed quite a bit the other day. You have all the forum where you can do what you need to do. At this time we close with it. And with the purpose of listening to the two attorneys' closing remarks, and that's it. Sorry. Mr. Equels: Well, false claims were made against my client, Cuban Crafters -- Chair Gort: Sorry. I understand. Mr. Equels: -- by Major Alvarez and Chief Exposito. Chair Gort: I understand. I'm sure you can take care of it in courts and whatever procedure you'd like to do. Mr. Equels: Yes, Mr. Chairman. Thank you. City of Miami Page 295 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Mr. Chairman, are we going to -- Chair Gort: Yes. Commissioner Spence -Jones: -- officially open back the meeting up? Chair Gort: My understanding is the decision for this Commission was to listen today -- [Later..] Chair Gort: Okey-doke. Now let me ask a question: How much time you each need? Mr. Milian: Mr. Chairman, I think whatever's time is necessary. I'm amenable to getting all the information out and all the arguments that are relevant before the Commissioners. Chair Gort: How much time we need? Mr. Milian: Mr. Chairman, I would say 30, 45 minutes at the most. Chair Gort: Thirty -- Mr. Chavez: That sounds about right. Chair Gort: Okay. The -- 35 to 45. We'll give them the 45 so we will have the benefit of the doubt. Is that okay with the Commissioners? Commissioner Spence -Jones: Yeah, that's fine with me. Vice Chair Carollo: I don't have a problem. Whatever time they need. Chair Gort: Okay. Vice Chair Carollo: Forty five. Commissioner Spence -Jones: Forty -- whatever. Chair Gort: Forty five minutes. Mr. Chavez: Thank you. That sounds about right. Chair Gort: All right. Mr. Chavez: It's hard for me to gauge without having heard their closing, but I would imagine that get equal time. Commissioner Sarnoff.. You're going to take a rebuttal. You want to separate some of your time? Mr. Chavez: I would probably reserve -- well, if he goes first, I'm going to rebut him directly. Commissioner Sarnoff.. That's true. Then he would get -- I'm sorry -- he'd get rebuttal. Mr. Milian: I would ask for a brief rebuttal if at -- any at all is necessary after I make my opening statement. It may not be necessary. Chair Gort: It's fairly new for all of us. I mean, for me it is. I don't know about the two City of Miami Page 296 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 attorneys sitting here. But the -- Madam Chairperson -- I mean, Madam Attorney. Ms. Bru: Mr. Chair, what's the question? Chair Gort: The question is they're all going to be making their closing remarks. My understanding, they're both requesting after the closing remarks to have rebuttals. Ms. Bru: It is customary -- the Manager has the burden of proof here. And he will make his summation and then -- Ms. Thompson: I'm sorry. I -- Ms. Bru: Oh, I'm sorry, Madam Clerk. Ms. Thompson: Thank you. Ms. Bru: -- the defense will make their summation. And since he has the burden of proof he could be allowed to have, you know, a brief rebuttal at the end. Chair Gort: So they both should be able -- I just want to make sure, since I'm not an attorney, that I'm conducting this the way it should be conducted. I don't want to have any -- Commissioner Sarnoff. Well, why don't we do this? Why don't we -- Madam Clerk, why don't we signal to the Manager's attorney at 35 minutes so that -- what happens is judges spread their time equally. He may choose to take ten of his minutes on rebuttal, but he may feel like he doesn't need rebuttal, but at least give him his signal at 35 minutes. Ms. Thompson: And what I'll do, I'll set the timer so -- Chair Gort: 45. Ms. Thompson: I'm sorry, Chair? Chair Gort: Forty five minutes. Ms. Thompson: For 45? Okay. Chair Gort: That's what we agreed. Yes. Ms. Thompson: Thank you. Commissioner Sarnoff. But make sure that Mr. Milian is provided at 35 minutes an indication that he's got 10 minutes left. Ms. Thompson: Yes, sir. Commissioner Sarnoff. Okay. Chair Gort: Both, okay. Mr. Chavez: And prior to commencement, I would just like to renew our objection that we've gone outside the five-day provisions as per Section 26 so that it's not deemed a waiver by way of our participation. Chair Gort: Okay. Thank you. Yes, sir. City of Miami Page 297 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Milian: Good morning, members of the Commission. First of all, I want to tell you that I am very appreciative of the patience that you have shown in listening to this most important matter today. I also want to tell you that I am personally honored to have had the opportunity to represent your Manager in these proceedings. It's always an honor to be in the public arena in public service. The decision you have before you today is critically important, and it's a decision that relies fundamentally on the issue of principle. When I tell you that it relies on the issue of principle, I'd like to share with you something that will illuminate all of us on the principle that we are following here, which is key to making a proper decision. And as a young Army cadet at the officer candidate school at Fort Benning, I had the privilege of going to the infantry center and school at Fort Benning. And Benning is a place where several five-star generals served over the years. Every morning we would be marched as cadets to that infantry center and school. And at the entrance of that infantry center and school, this historic place, is a statue of an American soldier with his arm extended calling out to his comrades, and underneath that statue that saw everyday that was in officer candidate school are the words follow me. "The motto of the infantry school at Fort Benning, Georgia, is Follow me. Do as I do. "Why is that important to observe that principle in this case? Because this case is effectively about the leadership example that is being set by your Chief of Police, and I want you to think about this during the course of the arguments that you're about to hear and as you deliberate is the example that has been set by the chief of Police in the City ofMiami Police Department, an example that you want your uniform members of the Miami Police Department to follow. When you have a question about police misconduct, police insubordination, inability to follow rules, unwanted use of excessive force, shootings, misconduct, the question that should be asked: Did the chief set the example that should be followed by each and every member of that Police Department? There are commentators that have said that this process that we've been engaged in, which is a judicial process, which is a fact-finding process, has been a waste of time, has been petty, has been insignificant. Well, I am here to tell you on behalf of the Manager that this goes to the very core of what leadership in the Police Department is about. The rules, policies and procedures of the Police Department do not tolerate insubordination. The rules of the Police Department require obedience, and place the burden on the member who has been given an order to follow those orders when they are lawful and reasonable orders. Ask yourselves the question: has the Chief of Police led by example in his conduct not only in this matter, but in matters that you all inquired during the course of these proceedings when there had been investigations into shootings, when there had been investigations into allegedly stolen bicycles, when there had been allegations of public corruption, when there had been public disputes and squabbles with the State Attorney's Office and the U.S. Attorney's Office. I submit to you that a chief of Police who conducts himself with disregard for the chain of command and for the principle that a military or paramilitary leader is subordinate to civilian authority is intolerable in any modern organization in these United States of America. And the message should be very clear from this Commission to each and every employee of this municipality. It should reverberate through the Police Department that insubordination, lack of respect for the authority of the City Manager shall not be tolerated. We commence with the principle enshrined in your charter: A chief of Police is under the supervision and control of the City Manager. If this termination is not upheld, then no City Manager will ever be able to supervise and control the Police Department. And more of concern to you should be, given the issues that were raised by many of you regarding the shootings and allegations of police misconduct, the so-called black eyes that have damaged the reputation and undermined the confidence in the Police Department, no police officer should be expected to submit himself to the authority of his superiors or to the authority of the civilian leadership, whether it be the City Manager, whether it be the State Attorney's Office that is responsible for prosecuting cases. These are the principles that are at stake before you here today, and these principles have been enshrined in our nation's Constitution and have been enshrined in our military and paramilitary traditions. Let me go to the first concept, because I was very concerned when I heard some of you talking about the issues of leadership in the Department. There is no question, for over 200 years all of us have agreed to abide by the rules that constitute our Constitution, and starting with our first president with the most single military man early in the history of our republic who called a mutiny of military officers, it has stood for City ofMiami Page 298 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 the fact, the principle, the precedent that the military and paramilitary forces must always listen to the civilian leadership. In this case the charter clearly lays out that the Chief had to listen, follow, seek the advice, and always determine his decisions in accordance with the wishes of your City Manager. Again, I tell you, if we don't do this, what can we expect from the uniformed officers on the street. Now one of you noted that this would undermine leadership in the police force. Contrary. This will enhance it. A military or paramilitary force that is armed with badges and uniforms that is sent out into the street, who feels no obligation to follow the rules to in some way listen and follow and subordinate itself to the orders of its civilian leadership, is an armed gang. Some of the problems that you have highlighted in this proceeding stem from the fact that the chief has not led by example. Now this may have been the straw that broke the camel's back. This may have been the last straw. But in all of the issues that all of you raised during the course of these proceedings, including the police shootings, the one common denominator in 22 months has been Chief Exposito's and his inability and unwillingness to sublimate himself to turn himself into the authorities that are superior and to show respect for those authorities. Now in the latest example, some may say it's inconsequential. Some may even quibble with the issue of whether these were demotions. But let's go back to what actually happened here. Nobody questions the authority of the Manager to supervise and control that Police Department. Even the Chief on cross-examination has accepted that, and each and every defense witness that was called by the Chief said that that was the principle. The Manager is his civilian authority, and he has to listen to what the Manager says. The Manager clearly told him not to take any personnel action against three high-ranking officers of that department. The order was clear. There was no question that the chief was in no position to take any action against three high-ranking officers. Now you had these officers testify before you, 85 years of experience in law enforcement. And when you count the acting chief you have 116 years of law enforcement experience. The actions taken by ChiefExposito, in contravention to the direct orders of the Manager, are unprecedented and unparalleled in this organization. These were retaliatory actions that denigrated these men, cost the taxpayers' money, put them in a position of humiliation and degradation. The Chief went on and issued an electronic mail throughout the Department that stripped these gentlemen of all their operational and administrative duties. Now some may say, well, they retained their pay and they retained their rank. Ladies and gentlemen, that is tantamount to sending a police officer out into the street with a handgun but with no bullets to do their job. What the chief did was find a way to circumvent, to defy, to rebel against the explicit orders of his City Manager. And if you go back to that e-mail on August 5, he notes that he was given that instruction, and he uses the words L'ircumvent'the authority to get his way. Now is that the message that we want to send to the men and women of law enforcement when we send them out into the street with a gun and a badge to enforce our laws? Do we want them to follow the example of your chief? Do we want them to go out there and find a way to circumvent the constitutional rights that we're all entitled to? Do we want them to go out there when they're told to make an arrest and shoot a person and then handcuff them and say, well, you never said not to shoot them? That's what's at stake in this particular case. A chief of Police leading a paramilitary organization must lead by example and be beyond reproach. Are we establishing here a precedent, if you retain this chief that every member of the uniform services of this City can go out every day and find a way to circumvent the ordinances that you have approved, the regulations that are part of the code of conduct for these police officers, the laws of the state of Florida and of our constitution? Is this a game of wink and nod where we find a way as lawyers looking for a loophole to get away with our will, despite what our superiors have told us? I would hope not, andl think the citizens of this community would hope not. When you become a police officer, you take an oath to faithfully execute the laws, enforce the laws, and follow the orders of a superior. Is that what the chief did in this case? He has sworn he is duty bound to listen to his superior. He acknowledges that the Manager is his superior. And yet, what he did was he found a way to get around and to defy the Manager's will to the detriment of this City, to the detriment of this community, to the detriment of the police force. Some of you may say, well, they really weren't harmed. It didn't last for a very long period of time. I submit to you, at a point of budgetary crisis in this community, every dollar that is misspent, every minute that one of those officers was not allowed to use their training and City of Miami Page 299 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 experience to serve the citizens ofMiami was money that was wasted, and it was an unconscionable waste of resources and contraventions of the chief to the chief and to the City Manager. And why do I say to the chief? Because that leads us into the second issue that's at stake here, the insubordinate conduct of the chief in not preparing an action plan in order to save budgetary dollars for a department that is hurting for money and for a city that is in financial crisis. How can you lead a department when you, with reckless disregard for orders of your superior, have been squandering money by having senior personnel sitting in an office and doing nothing? And what were those gentlemen doing? You heard the testimony of the three gentlemen. One assistant chief the highest-ranking black executive with the Miami Police Department, a man who was hand-picked by the chief for that position; a man who was never disciplined, was never counseled, was never reprimanded, was never criticized for the work that he had been doing; a man whose only mistake was to deliver the bad news to the chief that you are grotesquely over budget on the overtime. A budget in overtime that has gone hundreds of thousands of dollars over in a period of six months has gone from approximately $338, 000 to nearly twice that amount. And the response of your chief the example that he has set for the men and women of law enforcement is to retaliate against a man who has nearly four decades of experience in law enforcement, a man who has a reputation beyond reproach, a man who has honorably serve this community, a man who fought through the ranks to get where he is today, and that man was degraded and humiliated. Now some may think that is inconsequential. But let me get back to one important point here about Chief Brown, a man who is more than capable of leading a modern police force. Is that the way to treat an honored, revered member of your staff? Is that the example that should be led? Do you bring him in? Do you counsel him? Do you talk to him about the problem? Do you try to reconcile that there's a problem? No. The response of Chief Exposito in contravention to the Manager's directive was to strip him, humiliate him, degrade him, and send him into an internal Siberia inside the Police Department. We, the citizens, we, the taxpayers, those who need police protection were the ones that suffered. Then you turn around to the situation where you have two commanders, individuals again with sterling careers who were promoted into positions of responsibility, who are integral parts of the community policing that is essential in this community; both stripped of their operational responsibilities, relegated to offices and told not to leave unless it was for lunch. Is this the example that we want to give the rank and file of this community? Is this the example the chief wanted to give when he says, follow me. Do I as I do? Is this the appropriate expenditure of resources? Is this due process? You heard testimony from former Internal Affairs officers. No notice was given. No due process was respected. The law enforcement bill of rights was ignored. And why is your Manager so concerned when due process rights and retaliatory employment actions are taken against employees, and rightly so. Not only is it a horrific example and a horrific precedent for this Police Department than any Police Department, ladies and gentlemen, it goes to the pocketbook. If you have any employee, much less the chief of Police, taking arbitrary and capricious actions and retaliation, circumventing the directives of the City Manager, it's going to hurt you in the pocketbook. All three of those witnesses have said not only have they never seen this unprecedented action taking place in the City ofMiami Police Department, but they also told you that they have initiated, as is their right, legal actions and complaints regarding the actions of the chief. Now I think your Manager was wise to step in the breach at that point. Remember, this gentleman, your Manager, has only been here for a short period of time, and he's inherited a Police Department that has been a constant source of headlines in our community that has lost the respect of people out on the streets. This Manager is not only trying to make sure that this department functions according to your charter and your laws and your mandates, but is also ensuring that this department does not become the target of more litigation that can only damage its reputation but can cost the taxpayers endless amounts of money. To me that is unconscionable. In defense, the chief presents testimony that I would submit to you is, at best, questionable; at worst, it's close to perjury. You have been told and alluded -- it's been alluded repeatedly through this hearing that there were investigations. The fact is you've had the acting chief saying that there are no pendinglnternalAffairs investigations. The fact is these gentlemen have tested that under the law enforcement officers' bill of right, they've never been notified of any investigations. You had a major, formerly of City ofMiami Page 300 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Internal Affairs, who claimed that they are secret -- top secret squirrel investigations going on that nobody seems to know anything about, investigations that he couldn't talk about, and yet, he comes to a public forum and freely discusses and alludes to these investigations. None of these officers were ever relieved of their badges, their guns, or their positions. If there was a sensitive investigation going on against these men, if these men were a threat to the security and integrity of the Miami Police Department, they would have been relieved of their position. That is precedent. That is common sense. I submit to you that that was a fabrication to justify the unjustifiable. There is no evidence on the record or from any single witness that there has been investigations directed at Commander Roque or Perez or at Chief Brown, who is here today, who is back on the job, and who is serving this community again as he well should. That is a fabrication. It's a fabrication that the tobacco shop that has been mentioned here during these proceedings was some kind of den of iniquity, when the chief himself is photographed with the owner of that tobacco shop, when the chief has been to that tobacco shop multiple times, when the chief has picked up donations from that tobacco shop, when there's been no general order of nuisance issued against that tobacco shop, when no officers prohibited from going to that tobacco shop. That is a fantasy used to justi the unjustifiable, to justify retaliation after the fact, to justify political chicanery directed against three honored members of your Police Department. I don't think that that is the example that we want to uphold for this community. And when you ask yourselves rhetorically, when you ask yourselves why is this department with two black eyes and becoming the laughing stock of the law enforcement community, you can point your finger at the one common denominator, the one common thread in each and every one of the scandals that you raised during your deliberations. It's the Chiefs leadership. How can you expect these men and women to abide by the rules that we've all sworn to uphold when your own chief does not abide by the charter, does not respect the command of authority, does not respect the civilian authority? Some of you may have said and have said, well, the Chiefs been a long-time public servant. He's been with that department a long time. And some information was brought along of decorations that were recently given to that Police Department and the chief andl questioned -- None of those items were presented, andl question that because the record is simply devoid. I will tell you this, though, and this is very illustrative. Many years ago serving as a young officer, I had a colonel who had spent over 30 years in the Army, a veteran of three wars, and one piece of advice he gave me. He said, son, read the biography of David McCullough, of President Truman. He didn't tell me to go read a biography of Patton. He didn't tell me to read a biography of Douglas McArthur. He told me to read about Truman. He told me to read about Truman to understand how our country really works when it comes to civilian authority, your authority, the Manager's authority. Douglas McArthur was the highest decorated five-star general that this country ever had. He was a recipient of the Congressional Medal of Honor. He had gone to more than three wars, more than 50 years of service. Impeccable credentials. He was a strategist who designed the landing at Inchon that had saved the Korean War for us. And yet, in one night President Truman, a haberdasher from Missouri who did not even have a college degree, relieved them of his command with a concurrence of the chairman of the Joint Chiefs of Staff another five-star general, for one simple reason: General McArthur did not respect the authority of the President. At the time some thought it controversial. Today it's become engrained in the fabric of our nation's history in the way we run our government. And, indeed, when General McChrystal defied the authority of the President and allowed his staff to ridicule the staff of President Obama, President Obama relieved him of his command for not respecting the authority of the President, and Americans rejoiced not in the fact that a highly decorated veteran had lost his job, but in the fact that our traditions for respect of civilian authority stood the test of time. Yesterday was 9/11, and many of us spent the day thinking about these men and women who were victims of this atrocious terrorists attack. But we have to rejoice not in the fact that we killed our enemies, not in the fact that we have triumphed on the battle field, but in the fact that through all that turmoil, the solid principle of civilian authority for running our military and our paramilitary forces is untouched. We don't have a general in the White House running our country, and we don't need a four -star military or paramilitary leader running our Police Department and disregarding the direct orders of the civilian authority. Now your City Manager has to be concerned with expenditures, City of Miami Page 301 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 not only with the bad example the chief is setting, not only with the Chiefs disregard of the chain of command but also with the ridiculous and dis-controlled or out of control expenditures that are going into overtime because of decisions the Chief has made on how to run that department. The Manager asked a very reasonable request, one that he is entitled by the charter to ask. He is supervising and controlling a department that absorbs nearly 25 percent of your budget. Give me an action plan to reduce the overtime budget. It is untenable and unacceptable to continue to expend these kinds of money and, yet, not have enough police officers on the street visible and enforcing our laws. A plan of action, ladies and gentlemen. We are told that this memo that is uttered in an insolent tone to the Manager on August 5 was a plan of action. It's embarrassing to consider that anyone would come before you and defend that as a plan of action. Even a lowly lieutenant, a recent graduate of a basic course in the battle fields of Afghanistan or Iraq could have done a better action plan with a pad and a piece of writing instrument, whether it's a pencil or a pen. That was no action plan. Read it for yourselves. Note the insolent tone. It ridicules the Manager's idea. It ridicules the collective bargaining units' embrace of that plan. It even attacks the Manager and the collective bargaining units saying that while he, the chief is concerned about officer safety, it implies that they are not. Insubordinate, contemptuous, and insolent? That's an action plan? Or is that a slap in the face to the Manager, his authority, and your authority? I submit to you that if that is the level of staff planning and action plans that are acceptable for the largest municipal police department, for a department that has a responsibility of safeguarding over 400,000 citizens and key installations, then you're in serious trouble. You're in very serious trouble. That is unacceptable. That is not even the product of a neophyte on a good day. And you know why, ladies and gentlemen? It wasn't an action plan. Action plans are labeled as action plans. You read that memo for yourselves if you have a copy of it, and I'm sure you do because it was part of the charging documents and the addendums that went with it. It's labeled as expenditures. It's an attack on the Manager and a justification of inaction. Now some of you may say, well, he's entitled to communicate in that fashion. Well, there's a little bit of a problem in that, and it goes back to my original principle about leading by example. Is that the example that we want to set for the men and women on road patrol, in the investigative units, in the homicide unit of the Miami Police Department when they are told to prepare an offense incident report, when they are told to prepare an action plan to enforce our laws, when they are asked to investigate a shooting and develop an investigative plan? By your vote here today, you're going to establish a precedent. If this kind of insubordination, if this kind of intolerant, insolent attitude towards a civilian authority is allowed to stand, no City Manager, whether it's Mr. Martinez or anybody else you may pick, will ever be able to effectively do his job and enforce his duties. In your charter you give the Manager the responsibility -- you give him the duty of firing and hiring. It is his job. And even the Chief when talking about these rollbacks and demotions and transfers, concedes that it is the Manager who has the ultimate authority. The Police Department is not a fiefdom. The Police Department is not a sovereign unto itself. Any police chief regardless of service, regardless of rank, regardless of decorations, who cannot abide by that principle should and must be terminated. To do otherwise would be to endorse insubordination. How can you discipline tomorrow a police officer who is told to do something, to prepare a memorandum, to prepare a police report, and who turns in a shabby work product that doesn't even address the subject matter? You can't. Because all they have to tell you is !followed the Chief.'! did as he did. "You will effectively neutralize any City Manager. The City will become ungovernable. Every individual employee will be an entity unto himself. Every individual employee will decide policy with one big problem for this City. Not only will chaos reign in the administration of services, but your liability will skyrocket. If an individual is given an order to do something and either he refuses or circumvents it or finds a way to mock that order, what you're going to have is chaos and anarchy on the streets ofMiami. Things are tough enough on a day-to-day basis in the law enforcement community. Things are tough enough when they have to go out there and enforce the law, mistakes are repeatedly made. But this was no wanton, reckless, incidental mistake made by the chief. This was a cold calculated move to defy the authority of your City Manager, to retaliate against members of the Department whom he did not want for whatever reason because they were the messengers who delivered the unfavorable messages or because he felt that they weren't personally loyal to him. And in a cold, City ofMiami Page 302 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 premeditated manner, he found a way to rebel and defy the authority of the City Manager. In no way could this be tolerated. A chief of Police has to create a sense of harmony in the Department. That has to permeate the Department. You've had a department that has been on a roller coaster ride that seems to have no beginning and no end, Police Department that is the subject of columns and articles and opinions pieces and blogs. Once again, I remind you, if you lead by example, you cannot turn a Police Department into the laughing stock. You cannot turn it into anarchy personified by a uniform and the disgraceful behavior of defying the instructions of your City Manager. Put yourselves in that position. You're a legislative body. You are mandated by the charter and empowered by that charter to pass certain legislation. That's the law. If you pass those laws and you had a City Manager who decided to take those budgetary funds and refuse to spend them the way that you had mandated, you would have government that is hijacked. That's exactly what the chief did in this situation. He received orders from the Manager, and he decided to hijack the Police Department for his own personal goals and ends, regardless of the chain of command. Is that the example we want to give our officers? When we're out there on the streets and we see a police officer, we should feel compelled to feel safe because we know one thing about a good police officer: That he, above everything, else will follow the law; that he will submit himself to his superiors and to the civilian authorities that permeates the criminal justice system, whether it's a judge sitting on the bench or the state attorney who makes the decisions on what cases to prosecute. Is this the example that we are giving our police officers; that it's not a question of submitting to authority, but rather a question of finding a way to get over on the authority. That's why those who denigrate this process in dismissing the chief are absolutely wrong and fatally wrong and fail to see the momentous events that have transpired here; that when a chief of Police is refusing to abide by the rules that we all share and swear to uphold, it is a sure path for anarchy. If not, the totalitarian states that we've seen around the world when men in uniform decide that they need not respect the law, that they are indeed above the law. You have a situation in this department right now that is actually, in many ways, shameful. When you have the parade of witnesses that you had coming here before you, one of which even stooped to attacking me as being an advocate in this particular process, it really goes to show you the lack of discipline that is inherent in this Police Department. And when you ask yourself of excesses that are committed by that Police Department, by the shoddy investigations, by the unresolved shooting investigations, one thing should really strike out at you is the lack of discipline. And discipline is not merely coming before and sanctioning somebody because they did something wrong. Discipline is an inherent professional quality. It is the ability to adhere to those rules and regulations and those customs that keep things functioning smoothly. One American general said there is only one form of discipline: Perfect discipline. And I take you back to the conduct of your chief. Was this the kind of discipline, professional discipline? Or was this an intemperate, defiant, renegade chief of Police who decided to do what he wanted as far as the budget, as far as the handling of personnel matters, regardless of what his civilian authority told him to do. Is this the example that we want? Do we want to tell the City ofMiami police officers, you know what, Follow the Chief. "Do as he does. "I think not. When you look at the entirety of the behavior of the Chief even in his testimony, there is a characterization that don't think is uncharitable. It is one of insolence, defiance, and contempt. The Chief is testifying here on surrebuttal, which you were gracious enough to grant them, and what does the Chief do when he refers to Chief Brown? He calls him clueless. He publicly denigrates a man that he did not have the professional discipline or courtesy to bring into his office and talk to and counsel if he thought the chief was doing something wrong. You have been very gracious, andl think some of the observers don't really understand. I know Commissioner Sarnoff and Commissioner Suarez understands when we talk about due process. You know, people can mock our system of justice, that it may be slow, that it may be ponderous; that sometimes we argue over minutia, but this is all we have to ensure a sense of balance and fairness. And you have all bent over backwards to listen to the Chief's defense in this particular case. But I ask you and those of you who know that while the mission of government takes priority, we must always take care of our people because without those people, not only do we have no government, but our primary mission in government is to take care of the community. That's why government exists. And I ask you to contrast the graciousness that you have shown City ofMiami Page 303 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 and the due process you have given the chief in these proceedings to the way he treated Assistant Chief Roy Brown, and the way he's denigrated this man not only through his actions, but through his statements while testing. Is that the way we want our police officers to treat each other? Is that professional discipline and courtesy? I, for one, have read the policies and procedures manual of the Miami Police Department, andl don't think anybody can contradict me. They call for courtesy and respect in dealing with everyone, regardless of rank, whether they're a civilian or they're a fellow police officer. But here you have a chief of Police who not only denigrates his own staff members, regardless of merit and distinction, regardless of their due process rights, but treats his superior, his boss, the man who is legally bound to supervise and control his activities with absolute contempt, disregarding his specific instructions, willy-nilly going about and retaliating, and ultimately culminating andl think a shameful display of arrogance, calling a man with nearly four decades in law enforcement as clueless. Is that the example that we want to set for the uniformed officer of this community? Or is that the attitude of insubordination, contempt, and insolence? I find it very hard to believe, as I sat here before you and listened to the testimony that was coming forth, that the problems that you have raised, some of them which were addressed in the Philips report that talk about some of the key problems in that department, the chief seems to be oblivious to. Two points stand out that you raised during the course of these proceedings, andl think Commissioner Sarnoff brought them out during the questioning of the interim chief. You have a Police Department right now that is under a cloud of questions and doubt and suspicions. The Philip's report clearly talked about enhanced training with use of weapons. The one problem that came out during the questioning by Commissioner Sarnoff that was highlighted in the Philip's report was the chronic cronyism at the highest levels of the Miami Police Department. Cronyism, cronyism. This was a report that was paid for by the City, that was done by a neutral investigator, a former FBI special agent. And yet, if you look at the issue of the insubordination here, it goes to the heart of cronyism. So your chief of Police, leading by example, all of a sudden decides that three high-ranking members of the Police Department are not personally loyal to him, and he disregards the orders and instructions of the City Manager and retaliates against them. Ladies and gentlemen, obviously your chief of Police did not read Philip's report. And if he read it, he disregarded it. What can you expect from the rest of the uniformed members of this department? To disregard the instructions, the advice. Is that the example the chief has led. Instead of stepping away from the cronyism is to enhance it and to let the members of the Department know that you're either with me or I'll be against you? Is that discipline, professional discipline that rewards experience and quality law enforcement work? Or is that cronyism at its worst? The one unforgiveable thing that the chief has done in this case was not the mistakes that he has made that have been talked about during the course of these proceedings, but it is the reckless disregard for the civilian authority that controlled his actions and would have saved the City thousands, if not hundreds of thousands, of dollars. But somehow all the warnings, all the charter, all of the policies and procedure, one which mandates that he be obedient and respect his superiors, fell on deaf ears with the chief. If we should leave here today and you should fail to take the appropriate and justified action on this insubordination and we come here a few months from now and we have to go through another round of scandals and problems and issues and litigation with the City ofMiami Police Department, the public will look at us and say you had the opportunity. If not you, then who? If not now, then when? This is a decisive moment. It's a moment for a renaissance and a rebirth of that Police Department that should go under new direction that will adhere to the chain of command and respect the civilian authority. To do otherwise is a disservice to this community and to this Police Department and to every man and woman who ever wore the uniform and was subordinate and respected the civilian authority and the rules and the laws that we have all sworn to live by. Now my time is running out, and I'm going to get a brief rebuttal after this. But I leave you with one of the most important anecdotes that can think. Sometimes civilian administrators have to act by issuing orders that are not respected. President Truman wanted to desegregate the armed forces. Congress was stonewalling with the southern Dixiecrats. President Truman issued Executive Order 9981. He ordered immediate desegregation of the United States Armed Forces. The secretary of the Army, whose name is forgotten to all but history, in a despicable, defiant, and subordinate set of actions refused to integrate those Armed Forces. President Truman, four City ofMiami Page 304 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 years before he had to fire General McArthur, promptly dismissed and got rid of that secretary of the Army, and what a difference our world has become. Not only did we have the first black Army chairman of the Joint Chiefs of Staff but we had the first black commander in chief. I tell you to follow the example of President Truman: uphold civilian authority. Do not tolerate insubordination. Enforce your leaders of the Police Department to lead by an example that will make us all proud. Thank you very much. Chair Gort: Okay. Thank you. Yes, sir. Mr. Chavez: May it please the Commission. Vice Chair Carollo: Hold on. Can we monitor how much time he's got left then? Chair Gort: I beg your pardon? Commissioner Sarnoff. He's got five minutes left. Vice Chair Carollo: Right. You need to reset, but write it down to make sure how much time there is left. Ms. Thompson: Yes, sir, I did. Vice Chair Carollo: Okay. Ms. Thompson: Thank you. Mr. Chavez: May it please the Commission. Lead by example and lead by example is exactly what ChiefExposito has done. The only department in the City ofMiami that's running within budget is that of Chief Exposito. He has come to you here before you and told you that his department will be within budget and shown you the reasons for. He has brought crime down by his plans of action instituted in this City. To say otherwise is contrary to the evidence that has been established in this case and a complete fabrication of what has been presented before you. Ultimately, I had the honor and the privilege of representing Chief Exposito, the one bright light this department has had in a long time. There has never been a vote of no confidence with him. There has never been any issues of suspension with him, only until now when the City Manager apparently two months into his tenure, barely three, does what three other City Managers before him could not do. Referencing the Philip's report, then -City Manager Tony Crapp ordered the report, got to report. And if he would have found reason and cause to fire ChiefExposito at that time, he would have done that. As of June 21, the last day of his tenure, there was no cause to dismiss ChiefExposito and there is none today. Ultimately, there is an utter failure of any cause whatsoever supporting his discharge, andl do hereby demand his immediate reinstatement as chief. City Manager charges that ChiefExposito was somehow insubordinate when he reassigned certain members of his staff after he was told to hold off on their promotions. This case is not about shootings. This case is not about race. This case is not about anything other than the two charges before you. They are the prosecutors. They are the government here. They are the ones eroding and attacking his due process rights. To bring extraneous influence and extraneous matters that play no bearing into the decision that's to be made is nothing more than what has been occurring this whole time: A set up to get the chief out because he essentially does what is right to do. And imagine that, doing the right thing would be only so hard. For the purposes of this proceeding, I'm going to discuss the facts and only the facts. I'm not going to talk about McArthur pushing through the 38th parallel and inviting a Chinese counter attack. That was an expressed violation of a presidential order, and that is one thing that they cannot defend here. His acts were not insubordinate because there was no order given that was violated. He was told to hold off on a rollback and a demotion, and that's exactly what he did. These gentlemen were not rolled back. They were not demoted. They were merely reassigned. And we can quibble, but the truth be told, they were reassigned. No different than has occurred City ofMiami Page 305 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 since September 6. The second charge of insubordination is that the chief somehow failed to prepare a plan of action. When the truth be told -- and perhaps it wasn't in an Excel spreadsheet, it wasn't in a City ofMiami letterhead, and it wasn't fancy enough for the City Manager who has waited over 60 days to tell us otherwise. Sixty days to tell us otherwise. Ultimately, there was a plan of action provided to the City Manager, and it was initiated in accordance with his recommendations. Irrespective of the overtime overages and implications on the budget, the chief was asked to do more with less. The cuts to his overtime budget. The $5 million cut to his budget. The lack of police officers given to him. They have authorized the employment of 47 officers. Yet, where are they? And yet, we cut his budget and make him do more with less. And I'm proud here in front of you to tell you that he has done that. Crime is down. Violent crime is down. Sexual assaults are down. And that's because of his philosophy. His experience, law enforcement philosophy. But let's go ahead and take the first point first. You directed three staff members in your administration to be stripped of all responsibilities; thereby circumventing my, being the City Manager's, expressed directive to hold off on their demotions. In order to conclude that ChiefExposito was otherwise insubordinate is to analogize a reassignment of responsibilities and duties to a demotion. The City code defines what a demotion is. And a demotion is a reduction in classification and status. A demotion is used when an employee is found to be unsatisfactory or disciplinary matters. You may recall my cross-examination ofMr. Martinez. He's given a definition from Webster's, yeti challenge his point and say why. Because the City code that you're bound to doesn't apply to the situation at hand? It's true, he needed help. He needed help because he cannot support the claims of insubordination under Count I because they simply do not apply. None of the individuals subject to the reassignments could sustain such a claim. A reassignment is not a demotion. They maintained their rank. They maintained their pay. They maintained their benefits. And yes, I harped on this. I did. And the reason why I harped on it is because it doesn't meet the definition of the code. We are a country of laws, not of men. We concede that, Mr. Milian. But ultimately, if you don't apply the rule evenly, across the board, then you get disparity of treatment as what's going on here with the chief. Customary practices associated with rollbacks and demotions in the Department have always been preserved and observed, except in this instance. For example, the chief goes -- now, there's two levels here. There's classified and unclassified. The classed status or the classified police officer is officer, sergeant, lieutenant, captain. When he talks about the rights and the disciplinary nodes and the right of counseling, that's when you're involving a classified employee, when you're bringing a lieutenant down to a sergeant, when you're bringing a sergeant down to an officer, when you're bringing a captain down to lieutenant. That does not apply to unclassified employees under Section 36(f). It does not, because those persons serve at the will of the chief. So historically what happens is the chief walks over to the City Manager and says, you know, I got to bring some people back to their civil service rank, for whatever reason. The Manager then contacts Employee Relations, otherwise known as Human Resources. Why? Because they're the ones that process the paperwork and present it to the City Manager for what is otherwise has customarily been nothing more than a rubber stamp. Never is there cause required for such a rollback demotion from unclassified status back to civil service rank. I would challenge each and every one of you to pull those demotion memos, historically, for the past 15 years, including Timoney, who did have rollbacks. And Manny Orosa, interim chief readily conceded after on direct, told us he had none. He tells us Chief Timoney brought national stance and stature to our department. Yet the only one who's brought home a national award to the City ofMiami Police Department is ChiefExposito without even a vote of no confidence. Never is cause required for such a rollback, and to ask ChiefExposito to provide one is to treat him differently than any other chief before him. It's to treat him differently than he was treated in December by then -City Manager Migoya when he had all the rollbacks that he needed with no problem. And yes, he brought Perez up. He brought Roque up. He brought assistant chief up. He gave them a chance to serve and serve well. But ultimately, you got to do your job and you have to follow orders. The timeline is as follows. Under the first count -- this all starts on August 1, not August 4. When the Chief candidly reaches out to the City Manager, drops by when he sees his car, and says, !ley, I need to see the City Manager. "Oh, he's in a meeting with Luis Cabrera, 'the deputy chief on loan. Now, I don't City ofMiami Page 306 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 know. But when I'm on loan -- when I get a loan, I'm responsible for paying that loan. Yet, deputy chief as the evidence established, goes on loan to City Hall, but his money comes out of the police budget, so they're paying for the City Manager's loan, and he still manages to bring the Department in budget, but we'll get to that at the end. They have a casual conversation where he says, I want to promote some persons. But I want to caution you, there's going to be a couple rollbacks. At no time did they ever say who. At no time did they ever ask for what reason. You know why? Because that meeting was consistent with the historical, routine, and customary practices of demoting or rolling someone back from an unclassified status to their civil service rank. They know it. They know it. They tell them. Hey, but we need to contact Employee Relations directly, because this is something that some City Hall are not going to appreciate. And when askedMr. Martinez, who didyou speak to in between August 1 and August 4? And August 4 is a very important day. Why? Because the chief as he testified, calls Employee Relations. And what do they say? Hey, the paperwork is ready. Andl stress, the paperwork is ready. But you're going to have to talk to Mr. Martinez. So I askedMr. Martinez, what happened between August 1 and August 4? Well, I don't know. Did you speak to anyone? I may have. Who did you speak to? Deputy Chief Cabrera. Did he recommend one way or another? I can't recall. Well, the chief actually goes and meets with Mr. Martinez in person again and discusses the issue, and says, I need to roll these gentlemen back. I need to demote them back to their civil service rank. And he's denied at that time. Essentially, he changes his mind. He asks, can you put it in writing? And although it's so brief it is quite so telling. What Mr. Martinez puts in writing is -- and you have it. It is the August 4 e-mail at 4: 24 p. m. at the bottom of the 1 that apparently upset everybody and peeved Mr. Martinez in particular because it carbon copied each and every one of you to let you know what's going to happen in your districts. And although he was critical of that - and although Mr. Martinez's judgment was critical of that, all of you appreciated it. But what does he say and what is so telling? Beverly, I do believe, in principle, that every director needs to run their shop and be held accountable. However, please hold off on the three proposed demotions by ChiefExposito until further notice." What's most telling here is the principle that we all aspire and agree with. You run your law firm, when it's yours, the way you deem fit. Ultimately, each director needs to run their shop within norms to be held accountable. You cannot force personnel onto the chief and then turn around six months later, You're doing a bad job, 'when he relies on his subordinates to give him accurate information and to do a job well done and otherwise uphold the appearance of the Department. So what happens next? The following day the chief writes a letter or an e-mail, and he says, hey, the restrictions you've imposed upon in regard to the selection, placement and movement of my senior staff unclassified staff -- andl stress this point because it's Section 3602 that dictates these issues as to classified, not unclassified. Those persons serve at the will of the chief and he says and we hereby pass and circumvent,'and they try to use these words against him. But it's not the City Manager's authority he's bypassing and circumventing. It's those that he wishes to reassign because he challenges the appearance that they apply to the Department as well as the satisfactory work product that they performed. Does the City Manager say no, don't do that on August 5 that afternoon? No. Does he say, don't do that on August 6? No. Does he say don't do that on August 6? No. How much more of a heads up can you get? They have e-mails at 7 o'clock in the morning exchanging throughout the time. They obviously communicate through weekends. If I'm not mistaken, Mr. Martinez may actually have a Blackberry that gets real-time e-mails. His silence was the acquiescence to the reassignments. It stands to reason that if you receive notification of conduct that is contrary to your wishes, don't do that. "Not one e-mail presented to you to this day, even in response to the August 8 e-mail, does it state i7on't do that. "How can that be insubordination when you can't clearly enunciate what it is that he can and cannot do? So with the silent acquiescence of the City Manager, he holds off on the demotions and reassigns the officers to positions where he can feel comfortable leaving his department on a two -week vacation. That's why it had to be done when he asked that it needed to be done. Since August 8 to the present, not even a phone call to say, hey, can we talk about this? Each and every one of you challenged Mr. Martinez's judgment. I would even question the timing on September 6. The chief has security clearance. And on the eve of an anniversary that is infamous in our history when, historically, threats are higher, you suspend City of Miami Page 307 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 the top cop in the City with national security clearance? Yet, his judgment is concerned. Absent the City Manager's indecisiveness, the present atmosphere does not occur. And that indecisiveness actually carried into these proceedings when they provided a 12-minute presentation and rested their case in chief. I stand firm that nowhere in this charter -- and I challenge each and every one of you to read it and point out where it indicates that cause is required to demote and rollback an unclassified person to their civil rank. We cannot be strict constructionists and stick to the text when it suits us, when it suits us to get him out. You apply the laws evenly or you don't apply them at all. Ultimately, even though there's absolutely no obligation to discuss cause, I'm going to discuss the issues associated with the rollback and demotions, specifically because Commissioner Spence -Jones expressed a concern concerning retaliation. Look back to the events and the sequences that brought us here. The term retaliation was never even uttered once by the City Manager until counsel was retained, and he did an effective job of doing what a prosecutor does when they have a difficult or no case at all: Confuse the issues and create a red herring. And you know what? A red herring stinks. The City Manager rested his case and not one witness did he bring up here and tell you was retaliated against. In fact, if you think back as to the manner in which the questions were asked, it's i7o you feel retaliated against?'with little or no regard to what it actually means to be retaliated against in a civil employment context. Again, I challenge you to pull each and every rollback demotion memo and you will see that there were no different than would have been done in this case without the indecisiveness of the City Manager consequent to his lack of judgment. The questions raised with regards to the rent -- the rollbacks as to -- andl remember it vividly, despite the fact it was 11: 30, 12 o'clock at night, Commander Roque, did you receive disciplinary notice? Did you receive a statement of counsel? Did you receive a reprimand? Did you receive any notice whatsoever of any kind? That does not apply. Don't let them swig around the red herring and confuse the issue as to when it is that you have to give someone notice and when you don't. They were no more entitled to notice than I was when my partnership ended six months ago. When you're at that level of unclassified, you are an employee at will. And the police officers' bill of rights, under Section 112, only applies to that lieutenant, that captain, that lieutenant, that sergeant, and that police officer when you're seeking to discharge them. The internal investigations -- and let's not forget the timing. Within an hour of appointing Interim Chief Orosa, there is a takeover of Internal Affairs. At first he says, 1' wanted to see the files." Then he says, no. They casually mentioned to me who was and who was not under investigation. Well, what is so dissimilar to what ChiefExposito did with these three individuals than what chief -- Interim Chief Orosa did to Major Al Alvarez. Did he get his disciplinary notice? Did he get his statement of counsel? Did he get any notice whatsoever other than his card key didn't work when he tried to get in his office that morning? IfI'm not mistaken, the comment in such laymen but, wow, pointed terms, what's good for the goose is good for the gander. IfI'm not mistaken, it was Commissioner Spence -Jones that said that. So why is it that Chief Exposito has held to a higher standard to roll back and demote those in otherwise his -- that serve to his will; yet, a simple ten-minute phone call -- !ley, I think we need to secure Internal Affairs. "Yeah, sure. '=- resulted in him being locked out with any notice whatsoever. That's disparity of treatment. And that's exactly what due process is meant to prevent, specifically as to Assistant Chief Roy Brown. And again, I stress, we don't need cause, but just like motive in a criminal case, it's kind of nice. To be clear, there is no Internal Affairs investigation of Chief Roy Brown. There is no investigation of any shape and form as to Chief Brown. In fact, the one that was there was started by the previous administration and Major Al Alvarez candidly told you, You know what; I closed it because they violated his civil rights. "Does that seem like a department run amuck, running over everybody when they close investigations, recognizing the errors of prior administrations for violating civil rights? This case is not about anything other than the two counts levied before you. Don't let the extraneous influences cloud your judgment as it has done to that of the City Manager. Specifically, the events that unfolded with regards to Assistant Chief Brown were as follows. On July 25 of this year, the chief had a meeting in anticipation of a July 28 Commission meeting where it was noted that FOP vice president Javier Ortiz had an agenda item or he was going to attack the chiefs budget. The directive to Assistant Chief Brown was Please, gather the information. "We need to ask -- answer the questions intelligently because we City of Miami Page 308 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 know we're having overtime issues. But it seems like all the information we get, the Department's under budget. You know, in my household, I have a budget for groceries. It's $200 a week. But when the price of Corn Flakes goes up, there goes the budget. When the price of milk goes up, there goes the budget. But overall is what counts. And as long as the mortgage, the groceries, the cars, and the basic needs of living are paid, what does it matter ifI spent more in groceries. So I didn't go to Bonefish Grill one extra time. And these are the decisions -- andl hate to minimize them and bring them down to real terms, but that's what we understand. The Department has suffered a considerable amount of attrition. Police officers leaving the Department. One good thing is they've been able to restructure the organizational plan such that the overtime hasn't hurt the overall budget. Leading up to that July 28 Commission meeting, Assistant Chief Brown represented in no uncertain terms that the Department was $680, 000 surplus. Everybody was confident. We got the right information, and we're going to present well at that Commission meeting. We're going to be one of the few, if not the only, department in the City ofMiami that's going to come within budget. We're going to put the City ofMiami in a position to take our surplus and apply it to other departments that are under budget. Well, the July 28 Commission meeting comes andl believe it was -- there was a pocket item for the budget. And it's noted that for the first time there might be a problem with the numbers based on the observations. The chief gathered his staff. And if I'm not mistaken, they went right back there in the sergeant at arms office at first. And for the first time Assistant Chief Brown informed that there was a $2.5 million shortfall in the Department. I believe his exact representations were, as explained by ChiefExposito's testimony was, Don't worry; they know. "Who's they? City administration. In all candor, if we're going to respect the chain of command -- ifI did not tell my boss bad news the day before trial, I was fired. In fact, I remember one time when I got a settlement offer and I didn't tell him, and Miles McGrane, former president of the Florida Bar, walked up to me and said, And when were you planning to tell me? "You respect the chain of command in a paramilitary organization and you tell your immediate supervisor the bad news so that he can understand it before you go out and tell everybody else. Immediately, they go back to the office and they meet with the Police Department budget director, Mae Shepherd, Major Alvarez and Executive Assistant Al Vega were in attendance. Ms. Shepherd actually took issue with the $2.5 million shortfall alleged by Assistant Chief Brown. Said no way. We are within budget. In fact, according to the testimony -- and again, I can come up here and talk and tell you all nice analogies and anecdotes. I'm going to stick to the facts. Not going to talk about McArthur. I'm not going to talk about Patton. I'm going to talk about Chief Exposito, vis-d-vis the conflict that brought itself to a head here today with the City management. Mae Shepherd actually reminded Roy Brown of an e-mail that she sent him indicating of the $680, 000 surplus. And we know he got it because those are the numbers he represented to the chief on July 25. At the Commission meeting, Dunn's numbers -- I believe Commissioner Dunn's numbers were the same as those as FOP vice president Javier Ortiz. And when we get to the second point, but I think it bears mentioning now, and you look at the e-mail City Manager contends does not have a plan of action, the one he actually prints and attaches to the charging document, is his e-mail to Javier Ortiz forwarding the e-mail regarding the plan of action. If this is a conversation between an A'and B,'ivhy does C'heed to be involved? At least Chief Exposito had the good sense to carbon copy and not just forward it to somebody with an FYI, but I'll address the latter point first. I just thought it bore mentioning now. Again, Mae Shepherd refutes the charge, goes through the numbers, and they identify that the issue was a proposed pullback of $2 million that never took place and was not permitted to take place. At best, Chief Brown did not have a firm grip on the numbers and, at worst -- and please don't hold my words against my Client. I am here to do a job andl must say the things that must be said. But at worst, it was something else. He may have been assisting those that were trying to discredit the numbers at that Commission meeting against the Chief. A gentlemen with so many years of experience -- andl would normally say 40, but I'll go ahead and use opposing counsel's characterization, four decades. As to Commanders Roque and Perez -- andl really hesitate to get into cause because I know it's not needed for an appointed position. In 2010 they were warned to stay away from an establishment located at Northwest 7th Street and 36th Avenue. On my cross-examination, Officer Roque acknowledges that employees of that establishment had been arrested for trafficking cocaine. Is City ofMiami Page 309 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 this the kind of association that the chiefs brass should have? We talk about examples. We talk about taint. Is this the kind of association that his brass should have? They used this establishment for roll call. They invited elected officials. Major Alvarez explained that these arrests took place in October and December of 2010. Then they come and they show you a picture dated August 11, when the chief is on vacation, so you know it couldn't have been taken on that day. And it's caught because there were three other individuals on that. IfI fabricate evidence like that in front of a circuit court judge, I'd be responding to those examiners in Tallahassee, but I'll give opposing counsel the benefit of the doubt considering the circumstances on which he had to be brought up to speed. Those pictures were actually taken in this building, in the Mayor's terrace, not at the so-called establishment on 36th Avenue. It was a reception for the cast members of Burn Notice TV show. Quite candid, I had never even heard of the TV show until these proceedings, but obviously it's a good show. The appearance of impropriety that attaches to individuals on the chiefs staff by association cannot be permitted. And that appearance of impropriety, in and of itself is cause. And because these are unclassified employees, they don't need notice, they don't need disciplinary notices, and they don't need any counseling. These gentlemen, between them, have about 40 or 60 years of law enforcement experience. They should know better. Birds of a feather flock together. Andl don't mean to get cliche, but my mom used to always tell me things like that. Tell me who your friends are and I'll tell you who you are. "Moving on to the second charge. You have continued to disregard my requests about reducing overtime expenses by organizational restructuring and adjustments to deployment of resources consistent with the policy directives I have communicated for you." Where are the policy directives? You think if you're going to attach them to a charging document, you would have included them? They're confusing the issues. They're spreading that stink, that red herring. You don't change the rules of the game in the middle of the game. And if I was charged with some type of misfeasance and they start bringing charges in the middle of my process, I'd know the cards were stacked against me. And this was nothing more than to weave in some community conscience argument that if this were anything other than a quasi judicial panel, a judge would not permit that. But let's go ahead and go to that e-mail that was forwarded to Javier Ortiz as an FYI. The actual directive is 1"m requesting that you prepare an immediate plan of action to drastically reduce overtime costs. "And here comes the operative language: 1'recommend you consider reassignment of specialized units back to patrol as an option. "That e-mail is dated July 19. The alleged insubordinate responds within 24 hours. This is a man that's on top of his job. I don't respond within 24 hours, and) think I'm pretty good at what I do. And it says, the response, 1' will stress, just as I did at our previous meeting'L- they're having discussions about this plan of action. -- that representatives of the Fraternal Order of Police were present. There has been a significant savings to the City at the other end as a result of salary savings caused by the 54 police officer vacancies. "Heads up. Don't worry about the overtime budget. We're doing okay. The plan you're asking we implement -- he bypassed developing a plan of action. He went ahead and adopted the City Manager's recommendation, which was the brainchild of president and vice president of the FOP. Yeah, we'll save money, which is that organization's primary concern at the time of negotiations, disregarding its effect on crime or officer safety, something) see as a priority. We had a great debate here, especially with Interim Chief Manny Orosa, about tactical units and what they do and so on and so forth. Commissioner Carollo actually expressed concern to the philosophy of the interim chief. Within 24 hours, they caught a bad guy that was breaking into cars -- I think it was 22 cars -- 22 cars. Vice Chair Carollo: More than that. Mr. Chavez: Then I stand corrected. You know why? Because they put the skills they learned to the test. They're not driving around taking calls for service on domestic violence, not to diminish those facts. Those are very important things that they do. But the other angle of crime fighting is developing and identifying a pattern and attacking that pattern. I mean, I think you guys had they were stealing manholes around here, and it was the tactical team that stopped them. How do you steal a manhole? But now what we're going to do is the plan of action is to take these tactical units from a proactive stance on crime and roll them into standard patrol to deal with a City of Miami Page 310 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 problem that, in the big picture, is not a problem. And all the chief says is -- and it wasn't insolent. It was common sense. If you're going to dictate the terms of how I run my shop, you will not hold me accountable. If you're going to tell me what and how to argue, then you are responsible, not me. Part of being a professional is deferring to that professional's professional judgment. If not, we might as well put strings on this gentleman and make him do what we want. Counsel says I'm worried about if you don't do what you have to do. I'm worried about this City if you ask this man to leave. That's going to be the biggest badge you guys have right there, the man who suspended the top cop with national security clearance days before 9/11. Do you really want that judgment? The plan of action was provided on July 20. In fact, it was discussed before then with full knowledge thereof. And it was not only provided; it was implemented on a recommendation. Insubordinates don't follow recommendations. They ignore them because, heck, they ignore orders. This gentleman put it in. And on July 21, does he get an e-mail saying, I want a spread sheet. On July 22, did he get an e-mail saying, you know, that e-mail doesn't look like a $196, 000 employee would do. Acceptance by acquiescence created this atmosphere here today, and what these two need to do is talk about it. But it seems like the communication is only one way, and it's coming from the Police Department here. It ain't coming back. Andl can rattle off each and every day till now and the answer's going to be the same: Not once did Mr. Martinez ever say, please provide me with a nice color chart plan of action and how you intend to implement it. And would suggest to you that this is nothing more than an afterthought charge to support a claim of insubordination. We question the timing of the suspension for acts that occurred in the first week of August. If he had the charges on September 20, he should have done it then, or on the 21 st or on the 22nd or on the 23rd. Hell, he could have done it at 2:45 in the morning, as been done to prior chiefs in this City. This case is not about anything other than the charges this gentleman brought today, at all. And let's not forget the burden of proof in these proceedings. It is not my burden to prove he was not insubordinate. It is their burden to prove he was, and this evidence fails miserably. In fact, I can couch the burden as reasonable doubt, clear and convincing. I'll even go to the lowest one, more likely than not. And that burden is still a heavy burden to carry. It is so heavy a burden to carry that I'm going to sit down and I'm going to shut up and he gets to come back up here and address you all. He's going to come back out here and try to say, well, Ruben said and Ruben said and Ruben said because that's how heavy a burden is even under the most lenient of civil standards: more likely than not. So now that I've taken you through the specific facts without anecdotes dating back to the history of the republic and told you the specific reasons without being required to do so and walked you through the codes and the City Charter to tell you when reason is necessary, when this gentleman gets backup and talk to you, I want you to say, you know, what would Ruben point me to? What would Ruben say -- ah, I don't know, Mr. Milian. Follow the maquinita? Because we had a lot of debate on that too. I thank you for your time. I know you've listened passionately and intently, and sometimes we've had our disagreements, even on Thursday of last week, but that's nothing more than the obligation I have to a client, andl would expect that you would do no different for yours. Fairness is the element that carries the day. Due process and disparity of treatment are exactly the things that we need to protect and avoid. You protect due process and you avoid disparity of treatment. What's good for the goose is good for the gander, and an interim chief can now walk in and take over IA. They already explained to you they coordinate with outside agencies, and that's why the files might not be there. I surrender the balance of my 30 seconds to the Commission. But I tel you, vote your conscience, vote your heart, vote specifically to the charges here. We are the orders of our positions, and we are charged with explaining to our communities the whys and the why nots. And I thank you for your time. Chair Gort: Thank you. Applause. Chair Gort: Please -- hold, hold, hold, hold. You have five minutes rebuttal. Mr. Milian: Thank you, Mr. Chairman. One thing is very troubling in the alleged defense in this City of Miami Page 311 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 matter. Under departmental order number one, Chapter 11, members and civilian employees of the Department have to obey an promptly execute any lawful order emanating from a superior officer. We know the Manager is a superior officer of the chief. If an order conflicts with the previous order or with any departmental order, the member or civilian employee who receives the order shall respectfully call attention to the conflict. If the conflict remains and the last order does not alter or reconcile the conflict, the last order shall stand. The Manager doesn't have to explain himself. Any superior officer under a department that your chief was administering does not have to explain himself when he issues an order. The bottom line is that when that order is given, if it is not changed or reconciled, that order stands, and the chief the obligated to follow it. And you know what the troubling to me about the attitude of the defense in this particular matter? Is the call of a rubber stamp. Nothingl think can be more offensive to those who labor in the policy -making arena, who are executing commands than to be called a rubber stamp. Nothing could be more derogatory or denigrating to be called a rubber stamp. What does that conjure up? That the Manager was some unthinking fool who was just simply there as a figurehead? Does that elude that the Commission as well is a figurehead, a rubber stamp for what any departmental head represents before them? I think it's quite offensive. I think it's offensive also to tell you to compare the conduct and the way Major Alvarez's transfer was handled. He was transferred. He was not demoted. He was not told to sit in an office in some kind of penitent. He was actually transferred to another assignment and retained operational and administrative responsibilities. He testified to that. Andl think you also have to understand that the problem with a defense is that they keep talking about the chief's prerogative. And according to the powers and duties of the chief under our -- the Manager under Section 16, it is he who has the power to appoint and remove, except as otherwise provided, all directors of all the departments and classified as well as unclassified employees. They're making a distinction without a difference. And as Chapter 43 shows us, the chief is subject to the supervision and control of the Manager. Now I've beaten up those points repeatedly, andl keep bringing them back because it seems that the defense in here is well, he really didn't disregard the orders. But if he did, he was justified in doing it because of past practice and procedure. Well, lady and gentlemen, there's been a lot of things that have been done over the last 50, 60, 100 years in the City ofMiami that, thank goodness, are not done anymore. And we cannot hide behind the rubric, even if it were true, the label that this was done in the past. A new Manager, a new boss comes in. He sets the goals, he sets the standard, and the chief has to respond to him. And under his department's own rules that he expects the officers to follow, it was his obligation to be obedient to those rules, unless he was told otherwise, or those rules were changed in some shape, form, or manner. Now I come back to the theme that we started here again. The point is that by the judgment that you make today on the conduct of the Chief you will be sending a clear message not only throughout the Department on acceptable conduct and on the way the business of that Police Department has to be subordinate to the civilian authority, including you, but you're going to be sending a message throughout this community that no police officer, regardless of rank or longevity, is above the rules and the law. You know, the Chief may not have liked the direction he was getting from the Manager. He may not have liked the guidance he was getting -from the Manager. But if he had a modicum of professional integrity, he had two choices: Obey or resign. That's the way it's done. That is professional integrity. If you're conscience shocks you to the point where you cannot abide by an order that you have been given, your obligation is to resign. Now I want to tell you all something about this. The way this has come out, some try to make it sound like the firing and termination of the Chief for insubordination and disobeyance [sic] is a personal matter. Well, the good book reminds us that, you know, vengeance doesn't belong to any one of us individually, andl think we should be reminded that this is not about vengeance, but this is about upholding the standards, the chain of command and the integrity of the Police Department. If you fail to do that today, the wrong decision will reverberate throughout this community. I want to thank you very much on behalf of the Manager and for giving me the honor of being here, and I think it's always an honor to appear before a public body that takes its serious matters. And although I may question your judgment, I don't question your integrity. But integrity is the thrust of professionalism, and integrity is the pillar that sustains a professional police department. City ofMiami Page 312 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Chair Gort: Thank you. Commissioner Sarnoff. Mr. Chair. Applause. Chair Gort: Yes. Applause. Chair Gort: Excuse me. Commissioner Sarnoff. Mr. Chair. Chair Gort: Yes. Commissioner Sarnoff. You want to take a break? Commissioner Spence -Jones: What -- what are you saying? Chair Gort: My understanding is, we're all through with the presentations and all that. It's time now for the Commissioners to take over. We're taking over at this time. My understanding is -- you need ten minutes? Commissioner Sarnoff. And I'm just asking to be recognized. Chair Gort: Yes, sir. Commissioner Sarnoff. Well, I -- Commissioner Spence -Jones: I do. Commissioner Sarnoff. -- want to grant him his two minutes 'cause I don't -- Chair Gort: Okay. Commissioner Sarnoff. -- I think he has something he wants to hear I hope and -- Commissioner Suarez: No, no, no, no, no. Commissioner Sarnoff. I think we should all take a quick bathroom break. Chair Gort: No. He needs a break. That's what he's asking for. Commissioner Sarnoff. Right. Commissioner Spence -Jones: Mr. Chairman, before we do that, though, if you don't mind -- Chair Gort: Yes. Commissioner Spence -Jones: -- I just have a comment. Just a few seconds. Andl know that we'll come back. I'm assuming while we're talking this bathroom break, we're going to deliberate and come back with an answer, correct? City of Miami Page 313 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. I'm assuming we're going to -- yeah. Commissioner Spence -Jones: Okay. So I just -- if you don't mind, I'd just like to have two little points thatl do want to make, andl think that, you know, this -- whatever decision we make as a body, that we just -- we're just mindful of the various people that are affected by our decision one way or the other. I have, honestly, concerns with both sides. And I'm concerned with the Manager's actions, you know. I know at least three of us on this Commission were very clear from the very beginning about the Manager's actions and clearly not hearing us in saying that we needed the time to deal with other pressing issues and still decided to do as he sought to do. But needless to say, we're here, but I have to at least express that concern. The other concern I definitely have is regardless of the situation, the chief found a way around the order, you know, and decided to do what he felt was necessary to do, but the reality is he did find a way around the order. In the end, I just see that there are so many people that are going to be hurt one way or the other by our actions today, and I've only had an opportunity to serve once on -- so far on the dais, and my first day on the Commission had to be till 2 o'clock in the morning. Please tell me it's not like this all the time, you know. But, personally, I just feel, like I said from day one, that we could have handled this situation a lot better than what it's been handled. I think that, clearly, it could have been much more respectful and done in a very dignified way, but obviously on both sides there's a lot of big issues. And I guess, you know, the only thought I would have in the midst of all of this -- and you know, I just feel like in the end, you know, you do have -- whether or not it's chief that's been on the force for 37 years and has served this community, whether or not we like the way he served it, the issue, he served the community well. We have even the other officers today that kind of communicated their viewpoint. Roy Brown, which I've known for a very long time and respect, you know, him as a person. They're being affected, their families. Everybody's being affected by this. Andl just really feel in my heart that this could have been resolved a better way. Andl hope in the midst of our bathroom break and our deliberations and us going to a higher authority on this issue that we operate in wisdom and common decency and fairness to figure out a better way of dealing with this. I just feel like this is very wrong on all levels. And for the Manager to put us in this position, I think is -- I just really, truly think it's not right. Commissioner Sarnoff. Can we take -- Chair Gort: Commissioner -- yeah, we'll take a break. Commissioner Sarnoff. -- a true --? Chair Gort: But for a minute, I want you to know that this does not -- Applause. Chair Gort: Excuse me. Hold it, hold it, hold it, hold it, hold it. Vice Chair Carollo: And -- Chair Gort: This does not take place all the time. I mean -- and we do have a lot of debates. And after a lot of debates, we come up with the right answers. Vice Chair Carollo: Mr. Chairman -- Commissioner Sarnoff. Can we take a true two minutes? Vice Chair Carollo: -- instead of two minutes, can we do then 30 minutes since we're --? Commissioner Spence -Jones: Yeah. Andl would just like to, Mr. Chairman, put this on the City of Miami Page 314 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 record, you know. Chair Gort: Okay. Vice Chair Carollo: You know, two minutes never happen. Commissioner Spence -Jones: I -- Commissioner Sarnoff.. No. I know, but why do we need 30 minutes? Vice Chair Carollo: It's real two minutes. Commissioner Sarnoff.. I mean -- Commissioner Spence -Jones: Well, think this is important -- excuse me, Commissioner Sarnoff. I think this is a very important issue. And just like I never wanted to -- wanted us to rush into judgment and you said this from day one -- I mean, I've heard you say it on the news, that we need to really focus on the issues that are a lot more important to the City at this point. Commissioner Sarnoff.. Right. Commissioner Spence -Jones: Right. Commissioner Sarnoff.. I don't think (UNINTELLIGIBLE). Commissioner Spence -Jones: So -- right. And l just think that, you know, when you're talking about anyone of their livelihoods -- I mean, I have families here in this room that truly don't understand what's going on. They're just here because they think that whatever actions were taken by the Chief were inappropriate, but that's not what this is about. This is not about the shootings. It's not about that. This is clearly about whether or not he followed an order. And I'm just saying that I think that on either side, to me, you know, in order for this to make sense to the community, it would be great to see them at least operate with wisdom and common decency on both sides to figure out a way to work through it. I just think that's the right thing to do. And I know that my fellow colleagues -- I haven't served with you guys long, but this puts us all in a -- you know, I just think that the position that the Manager has put us in is wrong. And don't know what the motivation and really don't care what the motivation is at this point, because obviously he didn't care how we thought about it, you know, but we have to make a decision that's going to affect someone in a very big way, many people in a very big way. So we have a responsibility to the citizens -- the people that elect us, okay, to do the right thing on all levels. So I just ask that -- I agree, let's take the 30 minutes. Chair Gort: Be back at 11: 30. Vice Chair Carollo: Thank you. [Later..] Chair Gort: (INAUDIBLE) plenty of time to everyone to express their feelings, to express their thoughts. At this time we're going to discuss among ourself the Commissioners. I like to keep this quiet. I don't want to be any applauding or yelling or anything. I think this Commission has been very, very patient, so I want to make sure that we keep the same decorum. Commissioner Sarnoff.. Mr. Chairman. Chair Gort: Thank you. Yes, sir. City of Miami Page 315 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff.. I'd like to be recognized. Chair Gort: Yes, sir, you're recognized. Commissioner Spence -Jones: You don't want to wait for Carollo? Could somebody at least -- did somebody let him know --? Commissioner Sarnoff.. We've asked him to come. Commissioner Spence -Jones: Oh, you did? Commissioner Sarnoff.. Yes. Commissioner Spence -Jones: Okay. Commissioner Sarnoff.. I have done probably 102 jury trials in my life. That's a lot by anyone's perspective. Interesting to hear from a judge's perspective a case presented. I think Commissioner Suarez was somewhat frustrated. I know I've been a little bit frustrated, because most of what we heard was a good bit irrelevant, maybe unnecessary. Andl guess we're here to separate the wheat from the chaff but there's so much separation that has to happen that you have to do an analysis. And I'll tell you, in the 102 jury trials I've conducted, never once didl lose a night's sleep. Only in this case didl lose a night's sleep on Saturday evening, and it was kind of disturbing to actually sit at 2 o'clock in the morning and start writing down my thoughts. So you'll get some of my thoughts in a moment. I've always thought it intriguing to see what counsel says in their closing, 'cause closing is supposed to be our blueprint to tell us what evidence we should look at. Andl have a famous saying. Everybody's entitled to their own opinion; they're simply not entitled to their own facts. You can form any conclusion you want. Just make sure you're all working off the same facts. Now I heard a great deal of hyperbole today. Hyperbole such as, if you rule one way, we will go into chaos and anarchy. Let me tell you something. No matter how you rule today, this republic will prevail. It is bigger than any one man. It is bigger than any two men or women or woman. It -- this city will go on whether you rule one way or another. It will not fall into chaos. It will not fall into anarchy. There is no hijacking of the process. We will not become ungovernable. So for any Commissioner up here that's concerned that they rule one way or the other, the republic will continue. It is bigger than the Mayor. It is bigger than any Commissioner. It is bigger than the Chief of Police, and it is bigger than the City Manager. Now one thing that was said to me today which really stood out was that this was the straw that broke the camel's back. That means that the camel was carrying a lot of weight before then, and this was the last straw you drop on the camel's back and it broke. So that tells me that there's pretext here, that the reason that he was being terminated or suspended was pretextual. Now let me just say this. As a lawyer, you go right to the charging document, directly to it. And in criminal law, we call that -- you look at what's called a C-4 motion. Probably some of the police officers know what that is. And they say, as a matter of law, one of the charges -- or all the charges cannot proceed. Now the second charge is a very easy charge for me to disregard, the charge that the Chief of Police did not have a plan for overtime. This Administration has set up this police department for failure. How did they do that? The numbers started out at 37, went to 47, 64, not hired police officers. How do you go on and on and on not hiring police officers, then at the same time telling them no overtime, cut your overtime? You can only spread your men so far. You can only spread it so thin. And I asked the City Manager, what did you want me to do? I signed off on these. Migoya signed off on these, Crapp signed off on these, and somehow somebody's signature is sufficient to say I got it done. But it wasn't done. And this Manager should be concerned that it wasn't done. And if your signature is your way of getting it done, then we have a problem. Because if our patrol division is so depleted that the only way you can start patrolling the City ofMiami is by taking away TOS -- and why do they even use TOS? Because they have to get around a union contract of ten days. You can't redeploy your men for ten days. And what's shocking to me is I don't think you City ofMiami Page 316 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 understand that. I don't think you appreciate that. Now I have been with Commissioner Suarez, our crime meetings, and we keep on saying, well, we're going to redeploy our men. We get the Chief of Police there, Chief Bloom -- Blom -- I always thought it was Bloom, I apologize -- but Chief Blom constantly goes to the meetings. You know, I had a huge -- have a huge crime problem in Morningside. And while I was working Morningside, that evening a captain on the fire department pursued and captured an assailant. Lucky for him he wasn't hurt -- he was punched and he's got a nice jaw that shows it. And of course, what do you do the next morning? You're walking to the homes that the people's houses that were burglarized. You know, you're -- you want to act like you can do something. You call Chief Blom. You call Commander Morales. By the way, by my experience being here for the past five years, I don't think Richard Blom has missed my phone call by more than two minutes. I mean, it's almost like a joke, because I know if he doesn't get to me, two minutes later, I'm getting a call back. Commander Morales, if this -- I assume this Chief gave him to the Upper Eastside. He has had to deal with very significant issues. He's had to deal with rapes. He's had to deal with a home invasion. He's a great commander, and the Upper Eastside is not used to great commanders. So, you know, I look at the charging document and, as I said, in criminal law, we look to whether a C-4 motion to dismiss would rule the charge actionable as a matter of law. This is a civil proceeding. Would the charge sustain a motion to dismiss a judgment on the pleading or a summary judgment? It is apparent to me both as a trier of fact the second charge fails any scrutiny. You cannot set a Police Chief up to take away $2 million of overtime having just had his $5 million of overtime reduced the year before, and then have him as short as 64 men and say to him, reduce overtime. 'Cause what you're really saying is, you just can't have the coverage you need, Chief. And you cannot in good faith say that that is a justifiable reason to terminate the Chief ofPolice. Andl tried to look up so what is justification for the removal of a chief of police. I think the City Attorney -- and I'm surprised she didn't tell us this -- but there is something called McQuillin, The Law of Municipal Corporations. It talks about the removal of chief of polices [sic]. It says the requirement of substantial cause bears an appointing authority from dismissing a chief for personal dislike, political disagreement, or reasons of similar nature. A ground for dismissal must be one of -- specifically relates to and affects the administration of the office and must be something directly affecting the rights and interests of the public. Is that unique to McQuillin? Corpus Juris Secundum Second on the removal of a chief of police equally says a cause for which a chief of police is removable must be legal or substantial. The requirement of substantial bears personal and -- cause bars political and -- personal and political retaliation and requires a demonstration of unfitness or an incapacity to discharge the responsibilities entailed to an appointment of the office of the Chief of Police. You know, Judge Ungaro, who still sits on the bench, she's a federal judge. And for many, many years in this community, all civil rights violations were pretty much prosecuted in federal court. Probably about ten years ago, we developed something called the baby civil rights act, and that's now prosecuted in state court. But most of the law that has been created has been created in federal court. And she said to me once, you know, the underlying -- most civil rights acts are really not very good cases. She goes, however, the one thingl always do is when somebody says insubordination, I always look at it time and time again 'cause it's so easy to claim insubordination. And from my own sake -- andl hope for this Commission's sake -- you look at the charging document, you work from the charging document. The second charge simply doesn't bear any scrutiny. So now I'm left very simply with the first charge. And the first charge, as you know, is insubordination for the demotion, his word, of the three officers. Okay. So now we now learn that the way we're going to interpret the Charter -- which is not the way I interpret it, by the way -- is that all staff positions, all unclassified people are subject to the City Manager's approval for termination, hiring, firing, every element incident to the control of employment is now his. That means that Commissioner Suarez's chief of staff, Mike Llorente, is now subject to the termination of the City Manager, and by his whim, he can be fired or terminated. Now when I first came here, I did pass an ordinance, which is subordinate to the Charter, that precludes the City Manager from terminating anyone's -- anyone in the City of Miami's from a Commission office personnel. But as the City Attorney would concede to me, that ordinance cannot withstand the Charter, and she'd be right. So let's be fair. The City Manager could terminate everyone in my office. The City of Miami Page 317 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 City Manager could terminate everybody in Commissioner Gort's office, because that is their reading of the Charter. Now having said that, elected officials certainly understand loyalty. Simply put, it's probably the number one element of anything that we look for in our staff positions. Because without loyalty, you'll accomplish absolutely nothing. And I'm going to look to Commissioner Spence -Jones 'cause she was untarnished by this process for the past two years, and she came in and she chose all new staff a move that think she probably thought was necessary to ensure her success instead of maintaining an office that had institutional memory. And that is how much a role loyalty pays in our lives here at City Hall. You know, there is an instruction on believability of witnesses. It applies not only to criminal law, but it also applies to civil law. And the question starts out with was the witness frank and honest. And having just been in jury trial not even two weeks ago, I conducted the entire trial by asking the jury frankness. Honesty, you guys know what that is, because honesty is something that most everybody exhibits 99 percent of their day. But what does frankness really mean? To me, frankness is a term that means revealing. Did the person reveal themselves to you? And we in government simply need to be frank. But in doing so, we require those close to us to be loyal. Because to be frank, you need loyalty, to know what is to be revealed treated at all times in the strictest of confidence. And there is a moment in time for open government and there's a moment in time when you're having a discussion with something, an idea -- what is it, an idea becomes a notion, becomes a concept, becomes the policy. Government, and particularly this government, can try your confidence sometimes on a daily and sometimes hourly basis. I do not enjoy many hours spent in City Hall. Matter of fact, I'd rather be somewhere in my district more than City Hall. We understand loyalty, though, but now we're treating it as a prickly thorn, not only holding it tight under the guise it is a mere factor in one of three to determine those who we will allow closest to our thoughts. In reality, though, it is not and never will be. For most of us, it is the most important trait that we demand of our staff. Though we each pride ourselves in having smart staff members for each Commission, we would be blowing smoke if we did not admit to the general public that loyalty is not just a commandment but it is the first commandment. And today we consider removing that commandment from the Chief of Police and from the Chief of Fire. So it's no longer important that they have people loyal to them. It is the third prong of the test. Well, let's talk about one of the prongs of the test that was discussed, which was competence, that was both -- by both chiefs said that. It is a trait that describes many other sub traits, such as diligence, intelligence, persistence, and outcome. Now for the purposes of the rest of this discussion, I'm going to ask you to do something that think probably the newspapers will criticize me for. Justice is blind and there's a reason she's blind. It's so that she doesn't pay homage or look to what the witness's color of his skin is, national origin, religion. So I want you to assume that everybody I'm talking about, whether it's Officer Perez, Officer Brown, or Officer Roque, let's call him -- 'cause I'm an American Jewish person -- Schwartz, Goldstein, and Gold 'cause it really doesn't matter to me who they are. So for all purposes, it's Goldstein, Gold, and Schwartz. All of us were here to witness the July 28, 2011 Commission meeting, where the Chief of Police struggled to answer simple budget questions because those charged with getting the numbers correct not only failed him but, in my opinion, I think he was sabotaged. He didn't say it; I'll say it. Andl think he fell directly into a trap. I thought it was one of the worst moments I've ever spent up here as Commissioner, because I watched the Chief of Police struggle with numbers when he was given the wrong numbers. Andl am sure he went back and was extremely critical of the person who gave him the wrong numbers, Mr. Schwartz. And we heard the Chief describe his department's assistant at best as incompetent; at worst, something else. You know, I mentioned one of the factors incompetence. It is outcome. All of you can sit here all you want saying I'm intelligent, I'm persistent, and I'm diligent. But if you never get the outcome you need, you could be all those things and have failed. And outcome is a measuring stick upon which we need to start gauging ourselves. And you know, government is not really very good at outcomes. It has gotten a free ride from the citizens for years. Outcome is never important. Today with resources stretched, today with little money out there, with people making smaller livings than they probably have in the past five years, with unemployment at probably a true 16 to 17 percent, outcome is now important. Not just effort, but you got to get the ball across the goal line. Let's put it in a Dolphin terms. If the Dolphins do well against the New England Patriots tonight, it's City of Miami Page 318 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 good. If they do well next week, that's good. If they lose, their outcome's the same. There will be changes made in the Dolphins the following year if they don't have a better than 8-8 record. I think there might even be a change if they had an 8-8 record. So outcome matters, and it's going to start mattering to government. You know, I looked very, very closely at the first charge andl asked myself, why now? Why did this need to come about now? Why did the Manager have to bring this up now? 'Cause I'm going to be candid with you all, andl mean this with all due respect, Chief. You're going to retire in January. Why we could not have allowed you to remain in place through January as opposed to some pretext is beyond me. You might think you can serve beyond January, and if you think that's the case, then you have every right to bring a quo warranto in front of a circuit court judge and determine that you can serve. But I have to question the Manager's judgment when, simply put, he should be looking for a new police chief. And what this hearing has demonstrated to me is that new police chief should not come through the City ofMiami, that that police chief should come from somewhere far away, a man or a woman who has healed other fractured departments. Because I have never in my life understood that there are more factions in this police department than there are police officers. It's just some of them probably claim to be in two or three factions. You know -- and let me say this. Assistant City Manager Cabrera, I've only had good dealings with him as an assistant City Manager, but there is a Cabrera faction in the police department. There is an Exposito faction in the police department, and there are new factions developing by the day. And now there is what I understood to be the wisdom of bringing a John Timoney in probably won't get too many votes, probably won't -- you know, everything I'm saying here, I'm saying fully well knowing that I'll have a police union and a fire union opposing me for reelection, andl don't care. Because today we're here to do and merely look at what is he being charged with. What does the charging document say? Why was this the last straw on the camel's back? What were the other straws on this camel's back? Why would counsel bring that up? The sole reason he should be discharged for us is because he was insubordinate, because he was not allowed to have loyal officers, because he could not have competent officers. Outcome matters. It mattered to the Chief at the July 28 meeting. It mattered so much that thought it was the worst day I had ever seen in a City Commission meeting, and I've seen some tough days. I watched Mercy Hospital. I watched the Marlins. I watched some tough issues. I watched the budget discussion. The 2010 budget discussion was I think two minutes of the biggest pregnant pause I've ever seen in my life. Yet, I thought, since I'd been here, the worst moment I had seen was what was pulled on the Chief of Police. Andl know we can't go on governing like this forever, but the outcome seemed very easy for me. And that was the City Manager very simply could have done a national search -- and like I said, let's just assume it's a female police officer from Arizona comes over 'cause she's credentialed, she's competent, she's had good outcomes, and in January, whatever date it would be, we instate that person as the new chief of police. Should our Chief think he's still Chief he can certainly go before a court of law. He can certainly do a quo warranto, and we can certainly move on from there. But I never understood the Manager's reasoning, because it seemed very thin to me. And while I still support this City Manager, the foundation of that support has been rocked and cracks and fissures now remain. The City Manager's judgment has to be questioned for his timing, as I said, when he could have simply allowed this Chief to retire as he has put his retirement papers in. You know, I could say a lot more, and maybe I should and maybe I shouldn't, but this was never really a hard issue for me, because if you just look through the charging document and you take the extraneous matters away, you take away the hyperbole, you take away the fact that there won't be chaos and anarchy, there will not be hijacking of the process -- and we gave him due process. And while I think in those 102 times I've been in front of a jury that I understand due process, there's really only one Commissioner up here that has any modicum of having in their DNA (Deoxyribonucleic Acid) due process, and that's Commissioner Spence -Jones. She not only understands due process, she lived it, and she sits here because of it. So I think the Chief -- I think a lot of due process was served, but you've got to separate the hyperbole from the facts. And the facts in this matter simply don't dictate that in the charging document itself that this man was insubordinate. Andl go on further to say if this Charter is going to be interpreted the means and manner upon which this Manager's attorney brought today, then I give forewarnance [sic] to Chief Kemp. I give forewarnance [sic] to now City ofMiami Page 319 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 present Chief Orosa. Do not put people in that you want because it's up to the City Manager who your staff will be. Their loyalties will always be to the City Manager. And in case you wonder have we ever been here before -- 'cause Miami's got a unique history, so let me tell you that history. Before I came here -- and I know Spence -Jones was here -- a former City Manager terminated then Diaz's -- Mayor Diaz's chief of staff, and that termination lasted the better part of five days until Diaz returned and somehow it got undone. But is that the right thing? Should we terminate -- should he have the ability to terminate Mayor Regalado's chief of staff? Is that what we want? Is that where we want to be? And let me close with another thought for you all. 'Cause it wasn't very long ago that Donald Warshaw was the City Manager, and he kept investigative files on all Commissioners, better known as dossiers. Matter of fact, now Mayor Regalado had a dossier on him. The only one I've ever seen in my life was Mayor Regalado's because it was shown to me about two years ago. I couldn't believe this even existed. So now you have a City Manager who would have the power to make all staff positions, who in our history a city manager has demonstrated his proclivity and desire to keep leverage on elected officials, and suddenly, we're going to go into anarchy? The only anarchy we'll have is if we take away from the Chief of Fire and the Chief of Police his ability to hire people that are surrounding him that are loyal to him, loyal to his ways. We will judge him, whether his ways work or don't work, but it's not like this particular city is replete with history of City Managers going rogue and having dossiers on Commissioners. It's not like, oh, it's the City Manager, so he's better than that. I think Johnny Martinez is better than that, but as this Commission -- when we all first sat together, first it was -- I guess it was me, Suarez, and Carollo. And all of a sudden we had laws coming in front of us -- andl was the chairman at the time -- and those laws started to erode the power of the Commission and giving the Mayor more and more power. And he was very, very popular at that moment. And I, in a very unpopular way, voted against it and said what you do here today is not for this Mayor. It is for the future Mayors of Miami. And if you erode the power of the Commission, you put it in one man's hand. And we have never in our history -- we'll get there -- trust me, folks, we will get there. I'm from Brooklyn, New York, the greatest melting pot in the nation. Miami is the newest melting pot in the nation. But you do not leave power in one man's hand. The power belongs in the Commission. The power belongs amongst three people. The power belongs, as long as we are an immature society, in front of three people so that one man cannot become the all and powerful. And that is why I objected. I objected because we are still growing as a society. We are a new city. Sometimes we are splintered, and sometimes we do a marvelous job of coming together. I close by leaving you one last thought. It was then Major Exposito, soon to be demoted to captain by then Chief O'Brien, who blew the whistle on the practice of dossiers. It was then Major Exposito who supervised the only case of planting a weapon on a black man accused offiring a weapon. You know, I don't really care how many years' experience a person has or doesn't have. Government's a very easy place to hide. But there are defining moments in every man's life. And at every defining moment, this Chief demonstrated his ability to do the right thing. And the reason I used words like -- or Schwartz or Gold or Goldstein, I really don't care. I've never concerned myself with is the guy Anglo, is he Cuban, is he African American. I've -- you know, I sit here as the biggest minority in all ofMiami. I go to Broward, I become the majority. I leave the state of Florida, I become a supermajority. I love living here, andl don't care if it's a Cuban that's addressing me -- andl mean that all due respect -- I don't care if it's an African American that's addressing me. I only ask that a competent man address me. I'm not a quota guy, maybe because of the place I sit. I've never spent ten minutes in any Commissioner's shoes. Never spent ten minutes in Commissioner Suarez's shoes growing up in Miami. I don't know if it was easier to be Cuban, harder to be Cuban, but that's an imprint -- imprinter on his life that brings about who he is today. Commissioner Spence -Jones, you know, growing up an African American female, I've never spent ten minutes in her shoes, andl respect that. She's going to bring a whole different set of feelings to this dais. You know, I've had a pretty good life, a pretty easy life by most people's descriptions. I'm an American from Jewish heritage, also from Russian heritage. I've experienced discrimination once in my life, and that was in New Orleans, and that was when I didn't get a job in a law firm because I was Jewish. It didn't leave a major impact in my life. But if you go through that day in and day out, I imagine the imprinter on that life would be very City ofMiami Page 320 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 difficult. All ask is that we be fair today, and fairness dictates that this Chief be reinstated and that January of 2012, we have a new Chief of Police. Now since I don't get to ratin, that position but I do get to continue to work with my Manager, if that person comes from the ranks of the City ofMiami, I will have a significant problem with that, and if that person has not demonstrated that this -- that they can heal a fractured department, I will equally have problems with that. So I gave you a little bit of what would call a Judge Ungaro ruling. Sometimes she blueprints what the next thing would be. Well, here's my blueprint. I'm going to make a motion to deny the City Manager's suspension, andl hope it's joined by somebody. Vice Chair Carollo: Second. Commissioner Sarnoff. With the express understanding that this Chief of Police -- that there should be a new one, whether it's January 12, or whatever it is, of 2012, be in place. And do a good job of selecting that person, Mr. Manager, because it will define you for a very long time. Thank you. Chair Gort: There's a motion and there's a second. Vice Chair Carollo: I second it. Chair Gort: Discussion. Vice Chair Carollo: There's going to be discussion. Chair Gort: Yes, I'm asking. Who wants -- Vice Chairman? Vice Chair Carollo: I think have similar comments to Commissioner Sarnoff. However, there's other things that I want to stipulate. And actually, I prefer to listen to some of my other colleagues first. I think, you know, Commissioner Suarez had some very good points, and I'd like to see what he has to say. Commissioner Suarez: Thank you, Mr. Vice Chairman. I think -- I hate to throw the ball back into your court, but since you seconded the motion and since a motion was made and that's an affirmative action, I just want to hear what the rationale for your seconding of the motion was and then I'll give my statements. Thank you. Vice Chair Carollo: My rationale is that I agree with the maker of the motion. Chair Gort: Listen, any further discussion? Vice Chair Carollo: I mean, unless we go forward in a vote, I don't know. I'm ready to vote. Commissioner Suarez: Mr. Chairman. Chair Gort: Yes, sir. Commissioner Suarez: Let me just get some things on the record because -- and the reason why I kind of threw the ball back at the Vice Chairman is because, you know, a motion was made in a certain direction and it was justified by certain statements made by Commissioner Sarnoff and it was seconded, so I wanted to hear what his justifications were for his second. I guess he feels comfortable simply seconding the motion without further comment, but maybe he'll make further comments after I'm finished. This is one of the few decisions which we make that cannot entertain political considerations. Unfortunately, we cannot determine the timing of this decision, which I think many of us, if not most of us, agree is not ideal. We can't vote according to who we like or to what is popular. We have to follow the oath that we took while being sworn City ofMiami Page 321 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 in to support and defend our Charter. Now I have some concluding thoughts on the actual evidence that was presented and my determination as to how it applies to the Charter. First and foremost, there was admitted into evidence or an attempt to admit into evidence a statement that the Chiefs actions or others around the Chief is a violation of some sort of procedure. And there was introduced and presented for our consideration a document which purports to be the City of Miami Police Department's policy, Section 11.6.32.5, titled Derogatory Remarks, which states no member or civilian employee of the department shall directly or indirectly speak critically or derogatorily to anyone regarding any official action, order, or instruction issued by a ranking or superior officer. Also, the action or order of any City official, judge, magistrate, or other official agency shall not be publicly criticized. However, in any case where there is sound reason to believe that the order or instruction is inconsistent or unjust, the employee shall follow procedures as set forth above. This document and this charge is not before this tribunal and not part of the charging document as mandated by our Charter. My judgment then is that it does not constitute cause for purposes of this proceeding and is therefore dismissed. As for counts one and two in the charging documents, both counts allege that the Chief of Police failed to obey the lawful orders of the City Manager. First, let me begin with a conclusion of law. Our analysis must begin with an examination of the City Manager's authority under the Charter. Both parties to this proceeding, as well as the City Attorney, have agreed that the Charter gives the Manager the unquestioned authority to direct the Chief of Police on any lawful matter, including whether or not to demote his subordinate staff members. We may not like this Charter provision, but we are bound to enforce it. Now let me make some conclusions of fact, and I'm going to be very specific and very brief I think, in general. To me, the remaining analysis falls into two prongs. Number one, was an order given? Number two, was it followed in all material respects? And I'm going to begin, as did Commissioner Sarnoff, with charge number two. The Manager alleges in charge two that the Chief failed to comply with his order to produce an immediate action plan for reducing overtime. "This charge presents two issues. First, was there a direct order, and second, was the order complied with in all material respects? Direct order. It is beyond dispute that the Manager sent the Chief an e-mail at 6: 41 p.m. on July 19, 2011 Pequesting'an hnmediate action plan'to control overtime expenses. While it can be heavily debated whether a manager's request is a direct order, it appears from the testimony that the Chief believed that the Manager's July 19 e-mail required him to prepare an action plan. The Chiefs testimony in this regard leaves me with the impression that the Chief believed that a direct order had been issued. So we move to the next prong. Was the Manager's order complied with in all material respects? Again, looking at the written evidence before us, it is clear that the Chief responded to the Manager's request in writing and even agreed to adopt the Manager's recommendation to shift officers from specialized units to patrol. Moreover, the testimony indicates that the Chief began implementing his action plan to reduce overtime expenditures. While the Chiefs e-mail, dated July 20, 2011, is not, in my view, sufficient and adequate work product for someone of his position in response to a Manager's request for a plan, the fact remains that the Chief did in fact produce an action plan as requested by the Manager. On charge two, therefore, I find there's insufficient evidence to conclude that a direct order was violated. Now I turn to charge one. Again, here the analysis is two pronged. Was an order given? Like in count two, this is very much a case of res ipsa loquitur, the thing speaking for itself. Based on the Manager's testimony and the Chiefs own e-mail correspondence, it is without question that the Manager ordered the Chief not to proceed with three proposed demotions of high-ranking officers. The Manager testified that he ordered the Chief to hold off on the proposed demotions and to Maintain the status quo. "The Chief acknowledged in his e-mail, dated August 5, 2011, that the Manager instructed him to hot make changes to my senior staff at this time. "In the same e-mail, the Chief referred to the restrictions you have imposed on me, 'Second admission by the Chief that an order was given. That's in the August 5, 2011 e-mail as well. I believe the Chiefs e-mail, together with his testimony and the testimony of the Manager, establishes conclusively that an order was issued. The order, as explained by the Manager, was to hold off and maintain the status quo. The order as characterized by the Chief was to hot make changes to my senior staff. "Was the order complied with in all material respects? The testimony shows that despite the Manager's order, the Chief stripped the three high-ranking officers of all administrative and operational authority. The City of Miami Page 322 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 officers testified that the Chiefs action precluded them from acting in any capacity as police officers, even in the case of an emergency. Assistant Chief Brown testified that following the Chiefs action, he spent a full month sitting behind a desk doing nothing. "The officers described the Chiefs actions as bmbarrassing,'Rumiliating,'and i7emeaning. "The Chiefs actions cannot be fairly characterized as maintaining the status quo or abiding by the Manager's instructions to not make changes to my senior staff. The Chief argues that he did not violate the Manager's order because he did not change the officers' rank or salaries, but this misses the point. The Chief did not have the authority to change the officers' rank or salaries. Those changes could only be accomplished with the collaboration of the director of Employee Relations who was under strict orders to hold off on any personnel changes involving the three officers. By stripping the three officers of their -- of all their authority, the Chief did everything in his power to demote them, to downgrade and diminish them. The testimonial evidence of the three officers clearly shows that not only were the officers demoted in the only way the Chief had the power to demote them, they were rendered humiliated by not being informed of the cause and rendered useless with no function. I believe the Chief took the most punitive action he could have taken within his power and control, completely inconsistent with the order given him. The actions by the Chief are far worse than a demotion. The Chiefs decision to strip the three officers of their operational and administrative authority was in direct contravention of the Manager's order. On count one, therefore, I find that there is sufficient evidence to conclude that a direct order was violated. In conclusion, I believe we have heard a monumental amount of irrelevant evidence, as Commissioner Sarnoff stated, designed in many ways to confuse the issues and make this about what it is not. We have tried the Manager, the attorney for the Manager, and the Chief and indirectly and in some cases directly, we have tried ourselves. It is time for the City to heal from this division and come together. And l just want to make some additional comments relative to what Commissioner Spence -Jones and Commissioner Sarnoff said. I will work with whomever this body decides should or should not be Chief after this decision has been taken. I will do what I've done every single day since I've had the honor and privilege of being elected to this Commission, which is come to work with an open mind to try to serve my residents and the residents of this community. I have nothing against the Chief. In fact, it's quite the opposite. In my public statements, which have been referred to previously and by the defense counsel, I have said in a Commission meeting -- the same Commission meeting, by the way, that was referred to in the lawsuit -- on June 23, 2011, that I am very, very happy with the work of the police department in District 4 and that Chief Exposito has been great with me. "On Channel 7 news report on January 13, I saidl think I'm going to reserve comment on that until I've listened to all the different people involved in the situation because there are a lot of moving parts. And on January 31 I said, in the time I've worked with the Chief he's worked well with me, but yet, I'm waiting to see how this process unfolds. So this is not about whether I like the Chief whether I dislike the Chief. I've known the Chief and his family for a long, long time. I've known the officers surrounding the Chief for a long, long time. This is simply for me a decision about upholding the Charter of the City ofMiami that was sworn to protect and defend. Chair Gort: Thank you. Vice Chairman Carollo. Vice Chair Carollo: Thank you, Mr. Chairman. There is actually so many ways that could go with this, andl thinkl am going to take the lead of my two colleagues, which are attorneys, and deal with the second allegation first because I think there, at least with my two colleagues, we have consensus. With regards to the request for an action plan, I think the TOS transfer plan was part of the action plan andl think was verbally communicated with the Manager that actually agreed with it, among other things. Andl think that's pretty straightforward, and the Manager clearly has not proven his case with the second prong, so to speak. Although I've had issues with the fairness as far as telling the Chief as far as overtime and slowing down on overtime or so forth when, in all fairness, you have not done that with other departments. As a matter of fact, you couldn't even tell me what departments were currently over budget, and the Miami Police Department is not over budget. But with that said, I'm going to leave that alone and just stick to the facts, and the TOS transfer plan is clearly a plan that addresses that, has been implemented. City ofMiami Page 323 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 And again, if we're going to be looking for, you know, all the bells and whistle of a spreadsheet and so forth and, you know, you're looking at something else, but if we're looking for a plan that has been created, implemented and it's working, then again, we don't have a cause there. So that's with regards to second prong, so to speak, or second allegation, andl think we have consensus, at least with my two colleagues. As far as with the first allegation of insubordination -- and again, I could go with this in so many different avenues, especially with what I heard as summation or closing arguments by the Manager or his representative. First of all, you know, I am deciding let's go right to the issue. Demotion. What is the definition of a demotion? The Manger stated that from Webster's dictionary, the definition is to regulate to a less important position or reduce to a lower rate -- rank or status. I have a Webster's dictionary. As a matter of fact, I used it quite a bit during college. And it clearly stipulates here, demote, demoted, demoting, to reduce to a lower grade or rank, period. That's it. To reduce to a lower grade or rank. So I don't know which Webster dictionary you used. I'm not debating that. Maybe your Webster dictionary said that, but this is what my Webster dictionary stipulates. Let's go to another dictionary, American Heritage -- the American Heritage dictionary. The definition of demote, demoted, demoting, to reduce in grade or rank. So there's a consensus there between dictionaries. Let's go to our Code. Whether it's for civil service or not -- you know, sometimes when you do a comparison when you're going to buy a house or so forth, you can't do a comparison of the same exact house, same exact property three blocks away. It's a comparison, similarity. So whether it's civil service or not, I think it's fair to say the dictionary -- I mean, the definition is there and it's appropriate to use. In our Code, it begins by saying reduction in classification. In all three definitions, in all three definitions there is clearly not a demotion because they still have the same rank. Even when you said about status, what status? Status of what? Status of pay? Status of duty? You know, so I clearly, clearly do not see a demotion. Now when we speak that the Chief did everything he could that you could define as a demotion, the truth of the matter is, in the Assistant Chief Brown's position, he stayed in his same office. Do captains usually have that office? No. Do lieutenants usually have the same duties as a commander? No. They weren't reassigned to do a lieutenant's job. So I clearly, clearly believe that there was no demotion. Now with that said, there are some troubling issues. When someone states retaliation, humiliation, you know, it is troubling to me. It really is. At the same time, no one likes to hear that they're going to be demoted or that we're going in a different direction or that your job is going to change; same rank, just going from one area -- one department to another. And they may feel bad. I don't know if the exact word is humiliated, retaliated against. I really don't know Chief Brown. As a matter of fact, I have the same amount of experience in investigations as he does, and he did come before us. And when we started speaking about the budget, okay, I could see some of the reasoning why, you know, the Chief may have, you know, had some concerns. I don't necessarily know if that's retaliation, though. You know, when you say he was sent to Siberia -- unless Siberia is his office -- 'cause they didn't change his office. I mean, I don't know. It still is troubling because I don't necessarily think that the communication was as good and the professionalism was as good. And that goes the same with the commanders. But that still wasn't that he was insubordinate. They were not demoted. As I sat here and listened to summation on both sides, it reminded me of Friday's meeting when I was asking various questions, andl was referred to stay to the issue. And as I sat here in summation andl listened to the arguments or the burden of proof on the Manager's side, I heard a lot about and most of it was what would happen if someone was insubordinate and was not fired, but not necessarily that the Chief was insubordinate. I heard about Patton, which, by the way, the City Manager is not an elected official, so there's a big difference there. I heard about what would the rank and file think? I heard about not respecting the authority of the Manager. But I also hear that the Manager is the main authority, and yes, does have the authority to say yea or nay on a demotion, which he did, he exercised. Andl started thinking as Mr. Milian was speaking and all the questions you were asking with regards to the Chief ofPolice, I said, you know what, let me take the Chief ofPolice out of there and let's go to the higher authority, andl placed the Manager in those positions. Andl wondered, how does the Manager respect the authority of this Commission? Aren't we technically a superior officer of the Manager? Does the Manager respect our communities and districts? I mean, he thought it was clearly more important to right City of Miami Page 324 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 away change the leadership, a lateral in Internal Affairs because of possible investigations than to address us and what our communities were going to think or what public safety was going to be or addressing the confusion in our districts. I specifically asked him in an e-mail for an explanation. One of the commanders dealt with District 3, Little Havana. I specifically asked for an explanation and did not receive one. I did not get one. Sitting here on the dais, I came to listen, something that had no idea of. Commissioner Spence -Jones also mentioned it to him and asked him, please don't do this now. I mean, shouldn't there be some type of reprimand for his actions? You know, I heard a lot of people mention community, public safety, how it affects our community. And with the examples that l just stipulated, I never once heard the Manager mention about the importance that this have to our community. Who is the ultimate authority in the City ofMiami? Have anyone ever wondered that? I actually made a mistake because when our auditors were here now with the new GASB-54 and they're going to audit our books, they actually have to look at who is the ultimate authority in the City ofMiami, andl spoke to them about it, and they were clear who the ultimate authority is, andl should have asked them to say it on the record andl made a mistake and didn't ask them. You know who the ultimate authority is in the City ofMiami? It is the City Commission. The ultimate authority in the City ofMiami is the City Commission. You don't know how many hours I have spent analyzing it, and to a certain degree, actually admiring the checks and balances, because although we are the ultimate authority, we are also the easiest to fracture. Andl have seen firsthand how there's been many attempts to fracture the Commission because it may benefit others. And that's why from day one I have respected my colleagues, andl have demonstrated to all of you no matter what happens, nothing is taken personal. We debate. I will not allow anyone to speak bad about my colleagues, even if we disagree. And believe me, it's been tried many times. However -- and you will even be surprised who it's been tried by, andl will not get into that because, in all fairness, I always take the high road. The reason that I'm saying all this because I will be the first one to admit, it's not exactly going right to the issue. I've already spoken about right to the issue. But 75 or 80 percent of the summation of the City Manager was speaking about that, leading by example. And again, that is if someone was insubordinate, but never trying the case of this Chief being insubordinate. Something that I stated on Friday's meeting, talk about concern about what we are demonstrating to our rank and file. Take a poll of our police department and let them know that this Manager is a super cop. I'm a former law enforcement officer. I could tell you, I'd be concerned. I'd be concerned because he has expressly saidl have zero knowledge about police operations. It showed with what occurred. It showed with what occurred. The Chief -- and this has been testimony given by all of them -- let him know he was going to do some promotions and demotions. He didn't question it. He was okay with it. He stated he was okay with it. He told Commissioner Spence -Jones that he was okay with it. Why did he change his mind? Because he didn't realize that they were high-ranking officers. What did you expect them to be? From captain below is civil service, and two of them were commanders, one step over captain. Of course they were going to be high-ranking. Andl understand, you don't have the knowledge. However, I can clearly understand what the Chief was going through. It's not the first time that you have done a 180 in your decisions. It's happened with me, where you have told me something and two or three weeks down the road, I still don't really have an answer because you tell me, yes, we're doing this and then something happens or the City Attorney's office gets involved or I don't know and I'm in limbo for two or three weeks. Right here in this Commission, right here in this Commission, in the meeting that we were going to ratify you, you stated as far as the CFO (Chief Financial Officer), you stated the importance of a CFO because you admitted that you did not have the financial knowledge. You changed your mind. You changed your mind. Has there been -- other than, I change my mind, Commissioner, and we're not going that way because we're going to save, you know, money in the budget. Have we had more discussion about that? No. You mentioned in that same meeting with regards to better communication with me. Better communication with me? I sent you an e-mail, a legit e-mail asking just for explanation on something that's affecting District 3, public safety. Andl told you, I have to answer to my constituents. I need an explanation. What's going on? I guess you did a 180 there too. The bottom line is this is not whether I like the Chief of Police or I don't. This is not whether I like the Mayor or I don't. This is not whether I like the Manager or I don't. This is City ofMiami Page 325 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 not about the police shootings. This is not about the image ofMiami taking a hit, which I have gone on record and said, yes, we have taken a hit with this. This is about whether the Manager has proven cause to suspend the Chief on the two counts. On the first count -- well, on the second count, he clearly has not to at least three Commissioners up here. And on the first count, I'm seeing the definition of a demotion, and the bottom line is that is the definition from two dictionaries and from our Code, and it's not consistent with the definition of a demotion. I actually have a lot more to say, but I will just conclude and listen from my fellow colleagues. Because the truth of the matter is, maybe the Chief could have been more diplomatic with Assistant Chief Brown and Commanders [sic] Roque and Commanders [sic] Perez. Maybe there should be more communication as a whole. And by the way, it was done exactly the same with Major Alvarez. But the bottom line is, yes, should things maybe should have done -- been -- should have been done different? Yes. However, was there insubordination? No. No, there was not insubordination. Andl do feel that all of this, just like Commissioner Spence -Jones said, could have been handled differently. It could have been handled differently. I'm going to say one last thing. I heard Commissioner Sarnoff mention how he didn't sleep over this weekend. I would admit I had some trouble sleeping also. And one of the things that kept going through my mind was why are we here? Why are we in this situation? 171 go a step further. I clearly believe that Friday at 2 in the morning, by the time summation was going to be done, 3, 4 in the morning, was not the appropriate time to render a decision. However, over the weekend, I was extremely concerned. I was extremely concerned because there was a legit threat to the United States, some type of attack -- some type of terrorist attack. And I thought, our Police Chief situation is in limbo. Should we have made a decision so we wouldn't be in limbo? Although I truly believe that it was incorrect to make a decision at that time at 3, 4, 5 in the morning after I don't know how many hours of testimony. And when I went to the root of the problem, I said, you know what, I was placed in this situation by the person that supposedly responds to the Commission and the Mayor, especially when at least three Commissioners -- and then there was a fourth -- did not believe it was the right timing. I said it here. Did the Chief do something criminal? It's taken a month for you to do the suspension. Couldn't we have waited a little longer? I'm not going to mention about the judgment anymore. I think we've hit the -- we've definitely hit home on that. As a matter of fact, the only positive thing that have -- I am seeing with this is that, Mr. Manager, with all due respect, you really have given hope to a lot of people. You've given hope to a lot of people, because I truly believe there's a lot of people that never thought that they could ever become City Manager, and after what you demonstrated on Friday, they have hope to becoming City Manager. Thank you. Chair Gort: Thank you. Commissioner Spence. Commissioner Spence -Jones: No problem. Thank you, Mr. Chairman. I'm not going to be as long as everyone else. I just want to go over a couple of issues that I think are important issues, and again, I think then at that point we will make our decision. There are two things that I kind of wanted to address, and one of them, I guess, everyone agrees -- Sarnoff started it off by, you now, basically mentioning the second charge of the Chief not providing an overtime plan was actually very weak. The City, as far as I'm concerned on that issue, did not prove their case on this issue. It may not have been the best plan from the standpoint of a written document, you know, binded and three punch hole and all of that, but the Chief did provide a plan. And if the Manager was not happy with that plan, he clearly should have communicated it. I have a major issue in this case with the motivation and judgment of the Manager. Again, I don't have to -- I'm not going to beat a dead horse on that 'cause everyone's saying the same thing. The judgment issue is something to kind of be concerned or alarmed about. I feel clearly -- and I'm sure everybody watching or that participated in the overall hearing felt that the Manager was rushed to judgment on this particular issue big time because not being prepared going into it -- andl do understand his point was maybe he was not communicated to by the City Attorney, then to me then you do what it takes when you're talking about people's livelihoods to make sure that it's done right. So on that first issue, I really have an issue with it. Johnny's actions to me on this clearly demonstrates some level of incompetence on, you know, making this type of decision. Clearly, Commissioner Carollo mentioned earlier if -- and this is my first time sitting up here and City ofMiami Page 326 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 being a part of the overall meeting, andl would just show mercy on the fact that you've only been on the job for 30 day -- 60 days or so and just probably didn't really know everything that needed to take place in order to do the hearing properly. But because this was such a huge big issue, you know, I thought that you really could have handled it a lot better. Clearly, I could have gotten up here today and said, you know what, Johnny; I don't like your judgment on it. I think that what this has created for the City, people watching it, people reading about it, shows once again the City's unstable. And you know, either one of us could have, you know, motioned for Johnny to be gone, and I'm sure we would have had support. But to me, that doesn't make the situation right, so -- just because you didn't fully understand how it should be handled. So on that first issue, I would have to say I agree with all of my colleagues that that is pretty weak. On the second charge, which to me -- which is actually the first charge -- dealt with the issue of following an order, being obedient about the issue. And as we listened to the hearing, I think the biggest issue that came out of it for me was there was clearly an issue around trust and loyalty, okay. Regardless of whether or not we like each other or not, it boiled down to people not trusting each other. And you just can't work with people that you don't trust. And no matter what you do, even if the Chief you know, was able to, you know, work it out, or whatever the case may be, in his mind he would always have a feeling of distrust. And he -- and guess what; the Chief probably has a reason for feeling that, so I'm not going to even say that it's not warranted. And probably from Johnny's side, from whatever reason, it could have been information going into the job, it could be just his own personal experience that no matter what was communicated, he would always feel that he could not trust the Chief. So already we know that nothing can be built on anything without trust, okay. We don't have to, you know, be loyal to, you know, the end on certain issues, but we do have to, I believe, trust individuals in order to work with them. So I think that the underlining problem was the issue of trust and loyalty. And even though everybody skated around it andl think counsel in the end kind of tried to at least bring that out, I think that's how we got here. Now Commissioner Sarnoff mentioned a very good point today, andl guess I'll be dealing with my trial for at least a couple of more hearings because no matter what, it'll come up. But one of the things he mentioned around the issue of loyalty, he mentioned -- Commissioner, you mentioned, well, Commissioner, when you came on -- back on board, you decided that you wanted to basically clear out your office and, you know, start anew, okay. And to a certain extent, that's true. But three of the people working in my office came back, okay, and one is actually the person that runs my office. So -- and when I drilled down on that issue -- 'cause I really -- for me, whatever I do now, I really, really -- you know, I might belabor on it forever, but I really want to do the right thing. That's so important to me, is to do the right thing. And you mentioned, you know, how I wanted to start fresh, and you mentioned, you know -- because of the issue of loyalty. Andl have to say this, that you know, one of the individuals happened to be a state witness against me, okay. In some instances, some people would say, well, why would you bring her back? Because in their minds they see or could see there was an issue around loyalty or an issue around her not being supportive of me in this issue. And for me, it wasn't really about that. It was really about she side -- her siding with truth and not her being loyal to me, because I knew that ifI was on the side of truth, it wouldn't matter whether or not she was loyal to me. So for me, when it was time for me to make a decision about her coming back in my office to work, it was truly based upon the fact that she sided on what was truth. Andl would rather have a person that is built on truth than loyalty. So for me, you know, in this particular instance, I chose to side on that side, okay. And Mr. Manager can also go on to tell you I have no vengeance in my heart, because I understand that when you harbor that kind of stuff or malice, it does you no good, does the community no good, does no one any good. So for me, even with the departure of some of the staff members that were in my office -- since you only -- since you brought it up, I'm just addressing it -- I was very clear with the City Manager that whatever decisions he decides to make with them, treat them right. Even though I felt that you may not have been as loyal as I may have liked for you to be, I still felt that you deserved to be treated with respect. So I wanted to be clear on the issue of why -- you know, on the issues of who works for me and how that -- I thought it was important to say that. So what it really boils down to me in the end is this issue of trust, and that's what created this issue, not necessarily fact. Andl want to deal with the issue on fact. You know, a couple of my colleagues City of Miami Page 327 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 up here mentioned demotion, andl struggled with this first case -- first it was the first -- the second charge on the -- of the -- what is it, the service -- the plan that came up. You explained it, Mr. Manager. It was the issue of the plan. It wasn't the issue of the overtime, so that kind of you know, addressed that issue. But then when we started talking about, okay, was he disobedient, did he follow an order? Andl can honestly say in the first part of the hearing -- 'cause I really wanted to come into this hearing with an open mind. I was glad that I didn't hear, you know, what happened in the budget hearing. I kind of just was dealing with whatever information that was in front of me. And the thing that kind of stuck with me the most that it could not get around was this issue of demotion, because, technically, it was not issued in writing. It was not communicated in any other form that he would be physically demoted. Because after the Manager said, well, you know, I want you to hold off on anything regarding these three people -- the thing that hit me the most over the weekend as I looked over the documents and as I thought about it, for me the one thing that stood out the most was the statement hold off. And what that means to me -- andl don't know what it means to everybody else, but that means to me no movement at all. Andl do understand that the Manager was -- I mean, the Chief was leaving to, you know, go out of town and he wanted to at least get something going, but just like the Manager to me rushed to judgment on, you know, this particular hearing in not allowing us the opportunity to address it properly, I feel like the Chief did the same thing, rushed to judgment from the standpoint of saying, okay. Well, I don't necessarily agree with you, Mr. Manager, so I'm going to find another way to address it and then 171 deal with that when I get back. I don't necessarily think that he's perhaps trying to be malicious about it, but do believe that he understood when he wrote that e-mail that the Manager did not want any actions to be taken. So for me, hold off means don't do anything. I think the stuff that -- when I listened to the hearing on Friday, I think that you might have seen a shift for me when we had the officers come up to kind of speak in reference to, you know, their position and what has happened to them. And I'm always pro City employee and I'm always for the little guy. I'm always for, you know, the person that really feels, for whatever reason, they really don't have a voice in the matter. Andl could see the demeanor of the three officers as they approached the mike. It was almost as if, you know, they didn't want to really say too much 'cause they already felt like the retaliation part was already happening. Andl heard you, counsel. You said, well, you know, we kept bringing up this issue of retaliation, but that's what they felt, you know. And even after -- I felt even after this hearing, you know, the reason why there was a lag in communication in being forthright about it was because they felt that whether or not the Chief come back or what, they would have to deal with it after being, you know, on the force for thirty -something years, I'm sure they have experienced these things over and over again. For me, I don't want to be a part of that culture. I don't want to be a part of the culture that continues this kind of action. Because whether or not 20 chiefs did it prior to today, at this point, I have a vote on the issue. And if nothing else -- I can't speak for any other time, I can't speak for when my two years are over, but during the time that I'm here, I am not going to support a culture that continues if someone is not in agreement with something or they no longer feel the person is loyal that they're making the decision off of that and not truth, you know. So it could have been easily handled by the two of these young guys, you know, by sitting and working it out. It could have been easily handled with the Chief stepping to the three officers, Roy and Roque -- andl can't remember the other one, but the three of them and saying -- even if it wasn't him, somebody on his administration saying we have a problem with these following things, you know, and these are the concerns. But I could only imagine being on the force for 30 years and going through I don't know how many chiefs, showing up to work the next day or getting an e-mail -- andl read the e-mail again this morning -- basically telling everybody around you that you no longer can instruct them or tell them or administrate to them on anything. Even if you didn't say it, the actions show that you did it. And that's very -- I personally don't ever want to be a part of humiliating or making anyone feel, for whatever reason, that they've been mistreated. And just because it's always been done that way doesn't mean that it has to continue. So for me, I'm even more so concerned with the interim Chief that's put there because just as we got up here -- and he got up here and gave us all these, you know, wonderful promises, okay, 'cause that's what I consider them, promises at this time, you know, the reality is he can come to City of Miami Page 328 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 the work the next day and decide I'm wiping out everybody that the Chief put there. And to me, you know, we're creating the same thing over and over again, which means people are operating from a vengeful standpoint than trying to do the right thing. And one of the things that I would hope that happens out of this to at least bring some stability back to the police department is that it is mandated at least -- andl hope I'm supported by my fellow colleagues up here -- that the new interim Chief as we sit right here now today, if he remains here after the vote, that he understands that he can't come in there just wiping and disregarding and doing the same thing that we're accusing Chief Exposito for. That's just wrong. It's wrong to their families. Regardless of the situation, you guys are men in blue. You guys should stand together for that particular issue and not do unto others that you don't want done to you. IfI have to break it down all the way to that to get people to understand, you got to treat people with respect and dignity. So I say this in closing, you know, when the Chief came on board, I believe at that particular time I might have been out of here by then, but I do recall, you know -- and it's no secret that during my tenure that I was a big supporter of Adam Burden, right, and when I asked the other day if there was any major demotions or anything like that that took place, Adam wasn't necessarily demoted, but it was basically put to him, I'm sure from what he understood, that basically the two mindsets are not really in the same place, so he took it as a mean -- one of the high ranking -- high rank -- highest ranking black officiating officers, which was I believe the deputy or assistant chief at the time, felt that he needed to leave and made that decision to leave. And at first I felt that it was really wrong with how it was handled and done, but the Chief had the option to do that if that's what he felt he wanted to do with somebody that close to him. But when he appointed Roy Brown, I said, okay, well, at least he appointed Roy Brown. And I've known Brown for many years. And the one thing that I can say, you know, from our perspective -- andl don't want to make this a black and white issue or Hispanic issue. It's not even about that. It's about doing what's right no matter what. I felt that the decision that the Chief made around that, you know, I felt it was at least a better decision for the community and the constituents that I represented. But I could not -- you know, as I look at this whole situation and I listen to Roy up there, you know, communicating andl know him as a person, you know -- and I'm sure, you know, the feeling of him being incompetent or not able to handle the budget or whatever the case may be, I felt that that could have been handled a lot differently. And he should not have been the last one to know why he was being removed from the post. So this whole issue of retaliation, you know, and what they felt, I think it was very real for them, you know. I think my biggest concern at this point is after hearing, you know -- you know, going through Friday's hearing and being here today, my biggest and greatest concern is the number of people that are hurt by our decisions. You know, we have the families of the Chief -- first of all, the Chiefs family. Let's try them -- start with them first -- that are affected by this decision. All of the new team members, their families' affected by this. I have the family -- andl got to say it again. It has absolutely nothing to do with the shootings, but no matter where I go, that's what they think this is about. But the families that are affected by this because they feel no matter what, justice is justice. I don't believe justice is justice like that. You know, you got to do what's right no matter what, but in their spirits and they've lost their loved ones, this is their way of having this situation addressed. But again, that's not what this is about, you know. So they're affected by -- we're affected by it because no matter what we vote, we had to chose a side, andl think that that is a horrible place to be put -- position to be put in when we all know that this could have been resolved another way. So for me, if anyone understands, you know, the struggle of fighting against injustice, believe me, I know it. I lived it for two years. I truly understand it. But I can honestly say that my greatest lesson in all of that, even with me having the fiery spirit and, you know, even people calling me the angry black woman -- you know, she's upset. She's fighting against the system, you know -- the one thing that learned in that two-year process was the power of being able to submit to whatever the situation was and not to become a part of the problem. And l feel in this particular issue, on both sides, that we did bad after bad. Instead of someone taking the position that, okay, I'm not -- even though I know this person's decision is not the right decision nor the best decision, I know that I have to take my orders from this individual. So I think that I'm -- and I'm closing on this last moment -- on this last issue. We -- you know, there's a saying, do justly, love mercy, and walk humbly. And a lot of people take those words City of Miami Page 329 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 very lightly, but they're real words and it's truly based on truth. Andl felt like hopefully during the break that the two sides could have at least come to some happy medium, you know, that we could not, you know, create so much hurt in a situation like this, but apparently there's so much distrust on all levels that there was no place to go in that negotiation or whatever they decided they needed to do. So for me, you know, when I look at the overall situation and you know, I evaluate it from my perspective, the bottom line is did the Chief follow the order? And despite how we look at it and how we try to turn it around, when I read this part of the e-mail that says hold off don't move -- basically that's what it's saying -- that never happened. And while I may not agree with how the Manager decided to handle the situation, I have to agree with the fact that him telling him and giving him a direct order on holding off on this issue and he decided to do something a little different to me is another form of not obeying the order. So, for me, at that point that's where I got stuck. And with that being said, you know, I'm kind of clear about where I need to be. Chair Gort: Thank you. Let me tell you, when I was looking into it, I was going to come back in January. I sat down with the family. I sat down with a lot of people, andl knew it was going to be very rough for me 'cause I knew there was going to be a deficit of $105 million the first year, and we knew we were going to continue to have deficits for the next two years. I thought it was going to be very difficult because it's not easy. I was involved in the -- in '96 working with the unions and trying to get something done. This is one of the hardest decision that I'm going to have to make, andl want you to know that. I agree with the -- Commissioner Sarnoff. The City ofMiami is going to continue to grow. And I'm very proud of this Commission 'cause let me tell you, we'll sit here and we'll debate for hours. No matter what decision we take, good things come out of it. The Manager does have a lot of power. We have taken some of that power away from the management -- from the Manager's office. Andl think the bottom line is we make the final decision and that has been happening with a lot of the contract where before the Manager was the one that decided yes or no. Now it's got to be approved by the Commissioners, so I have to tell you that. The other thing I'd like to clarify, all the news and all the gossip out there is that we anti police or this vote will be an anti police or in favor of the police. I just want people to know I do support the police 150 percent. I mean, you can talk to the police officers. Andl went on several undercover missions myself so I know what it's like. I have a nephew, Gus Gort, who's a police officer, whose ex-wife was killed while she was performing, a police officer in the County. And there's a Gort bill in Tallahassee that hopefully takes care of those criminals. (UNINTELLIGIBLE) I understand the -- a lot of the power of the Manager we have and we got to talk about the City Charter. There is a need for a change in the City Charter, that's for sure. When was this last time revised? It was I think ten years ago, something like that. Things changes every day. I have to tell you one thing. I understand the timing is not the best, but at the same time, it's a shame that we've been put here not by this Manager only, but by a lot of people. 'Cause let me tell you, a lot of times when you are asked if you want a position, you got to take this position but you got to have these people working with you. And if you accept that, after a while you're going to have problem with them. Andl understand about loyalty. I think it's very important. But when I got elected, I was told to not use the people that working for the previous Commissioner. You know what? I have two of them with me, and one of them is the chief of staff, and he's done a tremendous job for the City ofMiami. And we have worked diligently to make sure that we look at all the contracts and that we come out with the right answer and save as much money as we can for the City. At this time -- andl agree with the -- with Commissioner Sarnoff. You're talking about the differences, fractions [sic] within the City ofMiami Police. Unfortunately, that's something we got to do away with. You mentioned two. I think there might be three or four different fraction [sic]. We need someone to go in there and make sure that it comes to a uniform police force. Andl agree. I don't think the -- if anything happens, and the new Chief I understand, is -- an RFP (Request for Proposals) went out for selecting a person. I think we should be a committee of professional law enforcement individuals doing the interview to select that Chief of Police. I think that's very important. Unfortunately, the -- at this time, I'm going to vote against the motion. With that said, I think enough has been said. City ofMiami Page 330 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: Just real fast on -- I just want to be clear. Your last statement on the selection of the Chief I just missed that. Can I be real clear what you're asking to have happen? Chair Gort: I understand -- at this time my understanding is there's an RFP that been out for quite a while and while we have several individuals that have applied for the position -- Commissioner Spence -Jones: Okay. Chair Gort: -- I think that selection should be made by the Commission made out of professionals. Commissioner Sarnoff. But it's not. That -- it's made by the City Manager. Chair Gort: I understand. But we, as the Commission, can request it, and that come in time -- we have a meeting on Thursday with a lot of things that'll be coming up. Vice Chair Carollo: Mr. Chairman, no. I don't think we as the Commission could request it. Commissioner Sarnoff. Right. Chair Gort: Okay. Excuse me. Commissioner Spence -Jones: The reason -- Chair Gort: Excuse me. Commissioner Suarez: We can ask the City Manager. Chair Gort: I'm sorry. I meant -- let me ask a question. Vice Chairman, you told me so. Where's the power? Vice Chair Carollo: The ultimate authority is with the City Commission because why? Any ordinance, any resolution has to be done through the City Commission. Now the Mayor can veto that, but this Commission can override the Mayor. Chair Gort: Correct. Vice Chair Carollo: For example, right now three of us can vote the Manager, vote against the Manager and vote him out. Now the Mayor can veto that. But four of us can override his veto. So realistically, we are the ultimate authority. The problem is when this ultimate authority is fractured. In other words, you know, we vote 3/2, we vote 4/1, and so forth. So what happens is that when we get fractured, we no longer become the ultimate authority, someone else does, the Mayor, the Manager, and someone else. So unless this Commission acts as a whole with at least four Commissioners being together, we lose the ultimate authority. Someone else -- Chair Gort: Let me finish my thought. Vice Chair Carollo: -- takes it from us. Chair Gort: Vice Chairman is right. And we can instruct the Manager -- we can request of the Manager to make a decision that we would like to see it. And talking about dossiers, well, one thing everyone learn about here is it takes three. City of Miami Page 331 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Sarnoff. I think if -- Chair Gort: It takes three. Commissioner Sarnoff. -- you -- Chair Gort: Let me finish. I allow you. I'd like to finish. It takes three. If we ask the Manager to do something and he doesn't do it, we can get rid of him and get a new manager. So that's no problem. Vice Chair Carollo: Andl don't even know about the request. According to our Charter, I don't even know if we could request. So it's really not that easy. And that's something) think in the future, yes, there's going to be a Charter reform. But no, Mr. Chairman. With all due respect, I don't even think we could request of the Manager. So -- Chair Gort: Let me ask -- Vice Chair Carollo: -- that's why -- Chair Gort: -- a question. Vice Chair Carollo: -- when -- all) asked was for an explanation, that's all) could have done. Chair Gort: Let me ask a question of the City Attorney. Madam Attorney, who does the Manager work for? Ms. Bru: The Manager is appointed by the Mayor and he is -- could be removed by this Commission by a four fifth vote. He has to work with both the Mayor and the Commission. So he works for both. Vice Chair Carollo: AndMr. Chairman -- Chair Gort: The Commission is one -- I mean, the Mayor is one; the Commission is five of us. Vice Chair Carollo: AndMr. Chairman, and you know -- and please forgive me. You know that I usually abide by Mason's rule and) definitely never cut anybody off especially my colleagues or so forth. But realistically, let's get down to the point. This affected my district, obviously affected the whole City ofMiami as a whole. Chair Gort: Yes. Vice Chair Carollo: This affected my district. I asked on two occasions, on two occasions I asked for an explanation. I have not received one. Is there any reprimand? Has he even addressed it? Is there -- I mean, think about any one of you being in that situation. Think about it. I'll tell you what. I'll go a step further. Why I really had an issue with that -- when he used as part of insubordination that the Chief CC 'd (Carbon Copied) us on an e-mail. I thought it was a breath of fresh air because there's been many, many, many, many occasions that we are left in the dark, from those $200, 000 check to God knows how many things. Yet -- listen, there's no secret. I'm a former fraud investigator. I looked at details. I'm an auditor. I look at details. After my first e-mail, he CC'd me, you know, with something, hey, this is an internal thing. It's within my purview and this and that. Did you all get that e-mail? No, right? Chair Gort: No. Vice Chair Carollo: Why did he CC the Mayor? City ofMiami Page 332 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Mr. Martinez: My boss. Chair Gort: Excuse me. Vice Chair Carollo: Oh, he's your boss? Chair Gort: Excuse me. Wait a minute. Mr. Martinez: (UNINTET,TIGIBT,F). Chair Gort: Wait a minute. Excuse me. Vice Chair Carollo: He's your boss. What about us? Chair Gort: Excuse me. Mr. Martinez: Yeah. Vice Chair Carollo: We're not your boss, right? Chair Gort: You're not recognized. You're not recognized now. Mr. Martinez: Can be recognized, please? Chair Gort: You're not being recognized at this time. Mr. Martinez: May I be recognized? Chair Gort: Let him finish first. Vice Chair Carollo: And that's exactly my point. You just said -- you just saw who he pointed and said is his boss. So we up here obviously are not his boss. Chair Gort: Okay. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: Commissioner. Commissioner Suarez: I think there's probably a lot of different ways that we can express our opinion as to how we think the process should be handled if the Chief were voted to be terminated and a new Chief were to be selected. Probably one of the ways is to have a discussion item on what we feel is best practices among other police departments in making that decision. Without directing, without suggesting -- you know, it's also, as the Vice Chairman said, within our purview and within our discretion, within our authority to judge the City Manager, and we do that on a daily basis. And if we feel that there is -- that the City Manager is not performing up to par, we also have that ultimate decision as we have this ultimate decision. So I think there are a variety of different ways andl think everybody here -- by the way, I agree completely with the opinion that has been stated here as far as factions, as far as, you know, selecting someone that is beyond reproach, if that were to be the case. It's definitely something that has to be done. I mean, I think we all here believe in our hearts that the police department is the most important department in the City ofMiami and that crime is the most important issue right now in the City ofMiami. So it is imperative -- andl said this when we -- when the Mayor was choosing the City Manager -- that we need the best and the brightest under all City ofMiami Page 333 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 circumstances. Commissioner Sarnoff.. Mr. Chair. Chair Gort: Okay, yes. Commissioner Spence -Jones: Mr. -- Commissioner Sarnoff.. Madam City Attorney, what does the Charter provision say with regard to the selection of the Chief of Police? Who gets to make that decision? Ms. Bru: As the chief administrative officer, the City Manager is the sole authority in the City for the appointment of a chief of police. However, this Commission can, by way of an expression of policy, just recommend how you would like the selection to be -- andl use the word recommend -- undertaken. You could recommend that you would want to have a national search. You could recommend that it should be from within the ranks. You could make your recommendations. You can express it as a matter of policy. And if the Manager doesn't adhere to your suggestion of policy, he may very well have his job at risk. Commissioner Spence -Jones: Commissioner Sarnoff, you're finished? Chair Gort: Commissioner Jones [sic], yes. Commissioner Spence -Jones: Okay. Just really fast, Julie -- Mr. Chairman. I think that -- I know the Manager andl have had a discussion or at least some community folks have come. I guess in certain cities they have like an open process on that. They can't select the Chief but they kind of go through rounds of you know, I guess -- I'm assuming you have a lot of people that are either applying or have applied or will apply before it's over. But I would like to see if there's some sort of community element that's put in place that there's almost like a recommendation and you can choose out of the recommended chiefs so that every -- and we might want to have an appointee from each one of our districts, you know, sitting on that committee. Are you shaking your head, Madam City Attorney? 'Cause it's done in other cities all the time. Ms. Bru: Again, I think this Commission, as a way of policy, can make recommendations. But ultimately, it is his sole authority. Commissioner Spence -Jones: Right. And what was saying, Madam City Attorney, was that we would have -- just so that we have the issue of transparency and just so that we can at least be able to get our issues and our concerns in there. I'm not saying that we're going to recommend who the Chief is. I'm saying that it could be a list of 20, 30 people, but at least our panelists that actually sit on that committee make the recommendation. Ultimately, it's his decision, butl think that because this police issue, especially in my district, is such a sensitive issue, I think that we need to do whatever it takes to at least build the confidence backup in the community and the people in our selection process. And not taking anything away from Mr. Orosa, but just, you know, the Manager singling out one person and saying this is the person, you know, and there's questions as to whether or not there were other people that had more seniority in there, you know. But that's a whole nother issue. So to avoid that perception, I think that if you keep it transparent, we don't have that as an issue. That would be my recommendation on that. And then also, Mr. Chairman, I was also very clear in my closeout part of this is that I think it's extremely important that we don't have the same wave -- andl know our interim Chief is here right now. I want to make sure that it's -- this does not become a chopping, you know -- we can't have that. We cannot continue that culture. You know, there are people that lives should not be affected by, you know, this decision. It needs to be handled properly. And what asked the Manager -- andl want to be clear on that -- is that any of those major decisions that are taking City of Miami Page 334 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 place, you know, unless it's detrimental to the department, it should be held off until the new Chief decides what he wants to do. But I don't want families leaving out of here or that are, you know, going to be affected by this decision to be hurt by this. They should not have to suffer for the decision we had to make here on the dais today. So I want to make sure -- do I -- can I hear you say it 'cause --? Mr. Martinez: Those are exactly my intentions; one, to have a committee from experts in the field. It could be Miami -Dade, you know, Police Department, and other experts in the field and maybe people from the community vet out the applicants and then submit -- Chair Gort: We'll let you know. Mr. Martinez: -- a recommendation, you know, to us. And as far as the interim, 'til that final person is picked, he's to do nothing, just keep the status quo, keep the police force functioning -- Commissioner Suarez: Mr. Chairman. Mr. Martinez: -- and that type of thing. Commissioner Suarez: Mr. Chairman. Commissioner Spence -Jones: I just wanted to make sure thatl had a commitment. I think it's really important. Commissioner Suarez: I just -- Chair Gort: Yes. Commissioner Suarez: -- out of respect for the Chief and his family, I don't want to have a premature discussion about -- Chair Gort: Yeah. Commissioner Suarez: -- you know, the future of this department without having first, you know, settled the issue at hand. Commissioner Spence -Jones: But -- right. And what -- Commissioner Suarez: I know. And I understand what you're saying. Commissioner Spence -Jones: -- andl totally understand that, Commissioner Suarez, but you know, I haven't been here as long as you guys have -- Commissioner Suarez: I know you haven't. Commissioner Spence -Jones: --from this perspective. And l just don't want to have a situation if we don't at least mention it they go back to the police station and all of a sudden you got everybody wiped out. Commissioner Suarez: I agree with that. Commissioner Spence -Jones: That's not okay. Commissioner Suarez: No, no. I agree with that. City of Miami Page 335 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Commissioner Spence -Jones: So we had to address that today. Commissioner Suarez: I agree with that -- Commissioner Spence -Jones: Okay. Commissioner Suarez: -- wholeheartedly. Commissioner Spence -Jones: Okay. Commissioner Suarez: And I think you're absolutely right to make that statement, and you know, I agree in all respects. Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes. Vice Chair Carollo: Now, in all fairness, Commissioner Spence -Jones, right here on this dais he has promised certain things to me and hasn't delivered. It happened with the Chief. You heard the testimony. It's happening right now. Legal counsel is constantly in his ears and so forth. So what he promised right now, I don't know what happens afterwards. If you know, maybe you should ask who's pulling the strings and maybe actually you discuss that with that person to get some assurance, because the truth of the matter is he has promised a lot of things -- and I'm just going by facts. I am just going by facts because after today, I am a professional. Once again, I will try to work with the City Manager and everybody here in the City 'cause I am a professional. You never hear me going on radio and bashing anybody or so forth. I stay to the facts, but the facts have been he has promised many things. He say this, he say that, but then I don't know what happens. He's really not sure, and then someone else talks into his ear or he does the famous -- you know, which has occurred. I mean, come on. Commissioner Spence -Jones: Commissioner Carollo -- andl think that we all agree sitting right here today -- andl thought we all agreed, but you know, you have -- you're bringing this up as a very valid point. I commit to you that if we see the same activity and behavior that you have witnessed -- at least on my side. I can't speakfor any other district, but can speakfor mine -- that you can count on my support at least on seconding the fact that the Manager is not able to handle the duty or the responsibility that we've given him. So you can count on my support from that perspective. But I do think that we need to allow Johnny the opportunity to -- I can't talk about what happened before I got here. I can only talk about what I'm experiencing now and from now on. But you can count on that support. Vice Chair Carollo: And Commissioner, one more thing. I want to know since we haven't had a chance to work too much together, how would you feel and how would you act if a month ago -- actually, no, over a month ago when a commander in your district is either going to be demoted or not or so forth and you ask for pretty much the only thing that you could do, for an explanation of your Manager, and he still doesn't give it to you. Commissioner Spence -Jones: I understand exactly where you're coming from. And again, as I stated a few seconds ago, I can't really judge a man from something that I haven't experienced as of yet. This is my first experience, so when we bring this issue back up again and there's still something that he has not done, I think then that's the appropriate time for us to deal with it, you know. But I hear your pain. I hear it. So I want you to know I'm with you. Vice Chair Carollo: No. And the only thing that I can do is come to this Commission and say this is occurring. Believe me, I've been in the penalty box for a while. I would assume that I will continue to be in the penalty box for a while even though, once again, you know, I will try to City of Miami Page 336 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 work with him. And during budget time, hopefully, he'll know a little bit more of the numbers than what he demonstrated on Friday. But with that said, you know, just look at it because we work here as colleagues as a whole and the truth of the matter is, he clearly stated that his boss is the Mayor and doesn't really realize that, you know, there's five Commissioners up here that realistically are also his boss and he needs to answer to. Thank you. Chair Gort: Okay. Thank you. Roll call. Priscilla A. Thompson (City Clerk): Your roll call on the motion that's on the floor. Commissioner Suarez? Vice Chair Carollo: I'm sorry. Commissioner Suarez: No. Vice Chair Carollo: Something's been passing out. Something has been passed out andl have not received a copy. Commissioner Suarez: Yes. Vice Chair Carollo: It's already starting. I'm already in the penalty box. Chair Gort: No, no, you're not. They just passed it out to you. You're not. Commissioner Spence -Jones: And as she's passing that, I would like to also, Mr. Manager, sit on -- with you on that committee that's pulled together. I would like to be a part of helping organize that to make sure -- ensure that it happens properly. Commissioner Suarez: So wouldl. Commissioner Spence -Jones: We will sunshine that meeting. Commissioner Suarez: We'll publicly notice it. Chair Gort: Continue the roll call. Ms. Thompson: Roll call. Commissioner Suarez? Commissioner Suarez: No. Ms. Thompson: Commissioner Michelle Spence -Jones? Commissioner Spence -Jones: No. Ms. Thompson: Vice Chair Carollo? Vice Chair Carollo: Yes. Ms. Thompson: Commissioner Sarnoff? Commissioner Sarnoff. Yes. Ms. Thompson: Chair Gort? Chair Gort: No. City of Miami Page 337 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 Ms. Thompson: The motion has failed 2-3. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: Yes. Commissioner Suarez: I make a motion that there is sufficient evidence under the first charge to show that a direct order was violated and that the suspension becomes, as of this vote, a termination. Chair Gort: Is there a second? Commissioner Spence -Jones: I'm sorry. I missed the -- Commissioner Suarez: I'll repeat it. I'm sorry. I move that there is sufficient evidence under the first charge to show that a direct order was violated and that the suspension becomes, as of this vote, a termination. Commissioner Spence -Jones: Yes. Chair Gort: Been move -- Commissioner Suarez: Second. Chair Gort: -- and second. Commissioner Spence -Jones: Second. Chair Gort: Under discussion. What I'd like to see in here right after the vote, you all get together at the police station and you get together to make sure that we continue with the plan that going to provide the safety for the citizens of the City ofMiami. Commissioner Suarez: Mr. Chairman, ifI may. Chair Gort: Any further discussion? Yes. Commissioner Suarez: Just one last thing. First of all, I want to thank all of the members in the crowd. You have acted in an incredibly civil manner throughout this process. You've actually listened to what the Chairman asked for at the beginning and refrained from clapping or demonstrating any emotion. This is not a cause for celebration, not a cause for celebration. This is a sad moment for the City of Miami. Chair Gort: Sure is. Commissioner Suarez: Andl would expect you to respect the family of the Chief who is here today, not only if and when the vote is taken, but as they are in the building and leave the building. I also would like to say that -- andl don't want to quibble with the Vice Chairman, but I will -- I'll direct my thing to the auditors and not to you. I have to take a little bit of exception with how they interpret GASB-54 because I believe and what's formed the basis of my decision is that the ultimate authority in the City ofMiami is not the City Commission. It is the residents of the City ofMiami who, in 1896, were a collection of great people that incorporated this great city in the form of our City Charter, and that is the ultimate authority in the City ofMiami. Applause. City ofMiami Page 338 Printed on 10/7/2011 City Commission Meeting Minutes September 9, 2011 ADJOURNMENT Chair Gort: Thank you all. Hey, excuse me. Didn't you just hear the Commissioner, what he requested? Vice Chair Carollo: Mr. Chairman. Chair Gort: Yes, sir. Vice Chair Carollo: Although, I sort of agree, yes, they are, but they elect us to represent them. And right now, they don't have a vote. We have a vote representing them. But -- so our votes here ends up being the ultimate authority even though we are placed by them. Thank you. Chair Gort: Thank you. Ms. Thompson: No. Commissioner Sarnoff. You need a vote. Ms. Thompson: Is the discussion complete? Commissioner Suarez: We need a roll call. Chair Gort: Any further discussion? Commissioner Suarez: No. Chair Gort: Roll call. Ms. Thompson: Your roll call. Commissioner Sarnoff? Commissioner Sarnoff. No. Ms. Thompson: Vice Chair Carollo? Vice Chair Carollo: No. Ms. Thompson: Commissioner Spence -Jones? Commissioner Spence -Jones: Yes. Ms. Thompson: Commissioner Suarez? Commissioner Suarez: Yes. Ms. Thompson: Chair Gort? Chair Gort: Yes. Ms. Thompson: The motion has been adopted, 3-2. Chair Gort: Thank you all. The meeting adjourned on Monday, September 12, 2011, at 1: 46 p.m. City of Miami Page 339 Printed on 10/7/2011