HomeMy WebLinkAboutMemorandumCITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Victoria Mendez, City Attorney rA
DATE: December 14, 2017 .,
RE: Proposed amendment to Chapter 11.5 of the Code of t e City of Miami,
Florida, as amended, for the City Commission Meeting on December 14,
2017.
File No. 3153
Chapter 11.5, Article II, of the Code of the City of Miami, Florida, as amended
("City Code"), entitled "Civilian Complaint Investigation and Review/The City of Miami
Civilian Investigative Panel," is being amended to conform Section 11.5-32 of the City
Code, entitled "Subpoena Powers," and Section 11.5-34 of the City Code, entitled
"Executive Director; Independent Counsel; assistance from City officials," with the
Florida Supreme Court ruling in the case of D'Agostino, et al. vs. City of Miami, et al.,
Case No. 16-645.
VM/BLM/JCP
cc: Daniel J. Alfonso, City Manager
Anna Medina, Agenda Coordinator
City of Miami File ID: 3153 (Revision: B) Printed On: 3/25/2025
City of Miami
Legislation
Ordinance
Enactment Number:13719
City Hall
3500 Pan Ameican Drive
Miami, FL 33133
www.miamigov.com
File Number: 3153 Final Action Date: 12/14/2017
Chapter 11.5, Article II, of the Code of the City of Miami, Florida, as amended
("City Code"), entitled "Civilian Complaint Investigation and Review/The City of Miami
Civilian Investigative Panel," is being amended to conform Section 11.5-32 of the City
Code, entitled "Subpoena Powers," and Section 11.5-34 of the City Code, entitled
"Executive Director; Independent Counsel; assistance from City officials," with the
Florida Supreme Court ruling in the case of D'Agostino, et al. vs. City of Miami, et al.,
Case No. 16-645.
VM/BLM/JCP
cc: Daniel J. Alfonso, City Manager
Anna Medina, Agenda Coordinator
WHEREAS, seventy-three percent (73%) of the electorate of the City of Miami ("City")
approved the creation of the Civilian Investigative Panel ("CIP") by a referendum vote in 2001;
and
WHEREAS, the City Commission adopted Ordinance No. 12188 on February 14, 2002
establishing the CIP with the objective of providing the City with independent and impartial
oversight of the Miami Police Department ("MPD"); and
WHEREAS, proposed amendments were submitted to the electorate regarding the CIP
in November 2016; and
WHEREAS, the proposed amendments were designed to promote independence,
transparency, and accountability and were approved by a referendum vote of seventy-eight
percent (78%) of the electorate; and
WHEREAS, the City Commission adopted Ordinance No. 13688, on June 8, 2017,
revising Chapter 11.5/Article II of the Code of the City of Miami, Florida, as amended ("City
Code") to comply with results of the referendum vote; and
WHEREAS, on June 22, 2017, the Florida Supreme Court issued an opinion in the case
of D'Agostino, et al. vs. City of Miami, et al., Case No. SC16-645, holding that the CIP's
invocation of its subpoena power as applied to police officers is unconstitutional because
compelled interrogation of police officers in investigations that could lead to their discipline is
preempted by the Police Officers' Bill of Rights codified in Sections 112.531-.535, Florida
Statutes; and
City of Miami File ID: 3153 (Revision: B) Printed On: 3/25/2025
WHEREAS, the proposed revisions to the City Code herein are necessary to make the
current ordinance conform with the recent Florida Supreme Court opinion;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble of this Ordinance are
adopted by reference and incorporated as if fully set forth in this Section.
Section 2. Chapter 11.5/Article II of the City Code is further amended in the following
particulars:1
"CHAPTER 11.5
CIVILIAN COMPLAINT INVESTIGATION AND REVIEW
ARTICLE II
THE CITY OF MIAMI CIVILIAN INVESTIGATIVE PANEL
Sec. 11.5-32. Subpoena power.
(1) The CIP may subpoena witnesses and documents as part of any independent
investigation, review, inquiry, audit, or public hearing it conducts, as follows:
(a) A request for a subpoena must be reviewed by the CIP independent counsel; for
compliance with legal requirements, including but not limited to federal and state
statutes and prevailing case law, and the appropriateness of issuance of the
subpoena. Further, in cases that involve criminal conduct by a police officer, the
Independent Counsel must consult with the State Attorney of the Eleventh Judicial
Circuit in and for Miami -Dade County as to whether the issuance of the subpoena
will interfere with any pending criminal investigation or prosecution.
(b) After receiving advice from its Independent Counsel as to whether a requested
subpoena complies with legal requirements and is appropriate to issue, and in
cases that involve potentially criminal conduct of a police officer, after receiving the
Independent Counsel's advice as to whether the subpoena will interfere with any
pending or potential criminal investigation or prosecution, the CIP may issue the
subpoena upon approval of a majority of its seated members.
(c) However, nothing herein authorizes the CIP to issue a subpoena to a law
enforcement officer(s) who is the subject of an investigation, review, inquiry, audit,
or public hearing.
(2) The subpoena shall be valid only within the jurisdictional limits of the city. However, the
CIP may seek enforcement and extraterritorial domestication of its subpoenas in
accordance with general law.
Sec. 11.5-34. Executive Director; Independent Counsel; assistance from City officials.
1 Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be
added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and
unchanged material.
City of Miami File ID: 3153 (Revision: B) Printed On: 3/25/2025
(2) Independent Counsel.
(a) The CIP shall hire an experienced and competent attorney -at -law in good standing
admitted to the practice of law in the State of Florida for at least seven (7) years and
generally knowledgeable in municipal law as Independent Counsel with the approval of
the City Commission. The CIP shall have the power to remove the Independent
Counsel with the approval of the City Commission. The Independent Counsel shall
provide legal advice and assistance to the CIP as requested and shall perform the
following specific duties:
(i) Issue written determinations, after consulting with the appropriate
prosecutorial agencies, as to whether an investigation by the CIP of a directly
filed complaint involving potential criminal conduct will interfere with any
pending or potential criminal investigation or prosecution;
(ii) Review CIP requests for subpoenas for compliance with legal requirements,
including but not limited to federal and state statutes and prevailing case law,
and the appropriateness of issuance of the subpoena; in cases that involve
potentially criminal conduct by a police officer, issue written determinations
after consultation with the appropriate prosecutorial agencies as to whether
the issuance of the subpoena will interfere with any pending or potential
criminal investigation or prosecution; and advise the CIP of the results of such
review and consultation.
(iii) Prepare subpoenas as directed by the CIP in accordance with Section 11.5-
32{ 4.
(b) The Independent Counsel's performance shall be evaluated annually by the CIP
pursuant to written criteria established by the CIP.
*„
Section 3. If any section, part of a section, paragraph, clause, phrase, or word of this
Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected.
Section 4. This Ordinance shall become effective thirty (30) days after final reading and
adoption thereof.2
APPROVED AS TO FORM AND CORRECTNESS:
"ndez, City Attor
ndez, City Httor
This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten (10)
days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City Commission or upon the effective date stated
herein. whichever is later.
City of Miami
File ID: 3153 (Revision: B) Printed On: 3/25/2025