City of Miami City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Tuesday, 10:00 AM Commission Chambers Miguel M. de la O, Chairperson Jorge L. Garcia, Chief Examiner Mariano Cruz, Board Member Michael T. Dames, Board Member Florene L. Nichols, Board Member
PLEDGE OF ALLEGIANCE The meeting was called to order at 10:22 a.m. The roll call for the Board Members was as follows: Present: A. APPROVING THE MINUTES OF: Regular Meeting of March 13, 2007. The Board entered a motion to APPROVE the minutes of the March 13, 2007 meeting which resulted as follows: Motion by Member Garcia, seconded by Member Dames, to APPROVE. PASSED by the following vote. Special Meeting of March 20, 2007. The Board entered a motion to APPROVE the minutes of the March 20, 2007 meeting which resulted as follows: Motion by Member Garcia, seconded by Member Dames, to APPROVE. PASSED by the following vote. B. B.1 PERSONNEL MATTERS 07-00466 Copy of a memorandum from Mario Soldevilla, Director, Department of Solid Waste, notifying Keeva Weems, Administrative Aide II, of her interdepartmental transfer effective March 19, 2007, in accordance with Civil Service Rule 11.1. (NOTIFICATION) NOTIFIED B.2 07-00498 Copy of a memorandum from Adam L. Burden, Assistant Chief, Department of Police, requesting an extension of probationary period of Marissa Portillo, Communications Assistant, for six (6) additional months beyond April 15, 2007. (DISCUSSION) The Executive Secretary informed the Board that Ms. Portilla is on vacation, but she did sign the concurrence memo acknowledging that she has no objection to the Police Department's request to extend her probationary period. Following discussion, the Board entered a motion to APPROVE the Police Department's request to extend the probationary period of Marissa Portillo, Communications Assistant, six (6) additional months beyond April 15, 2007 which resulted as follows: Motion by Member Garcia, seconded by Member Nichols, that this matter be APPROVE. PASSED by the following vote. City of Miami Page 1
B.3 07-00285 Copy of memorandum from Adam L. Burden, Assistant Chief, Department of Police, requesting an extension of the probationary period of Lisandra Castineira, Police Recruit, for twelve (12) additional months beyond February 27, 2008. (DISCUSSION) The Executive Secretary informed the Board that this item has been withdrawn because Ms. Castineira has since resigned from her position. WITHDRAWN C. D. D.1 MILITARY LEAVES OF ABSENCE NONE. DISCIPLINARY MATTERS 05-00558 Copy of Judgment from the City Manager concurring with the Board and upholding the decision of the Chief of Police that Bernardo Perez, Police Officer, is guilty of the charges against him as cited in his 20-hour forfeiture letter, effective June 1, 2005 and ordering that Bernardo Perez forfeit 20 hours of earned overtime as recommended by the Board. (NOTIFICATION) NOTIFIED D.2 05-00643 Copy of Judgment from the City Manager concurring with the Board and upholding the decision of the Chief of Police that Juan Casiano, Police Officer, is guilty and violated the charges against him as set forth in the 20-hour suspension letter, effective January 8, 2005 and ordering that Juan Casiano serve a 20-hour suspension as recommended by the Board. (NOTIFICATION) NOTIFIED D.3 05-01043 Copy of Judgment from the City Manager concurring with the Board and upholding the decision of the Chief of Police that Trevor Bonner, Crime Scene Investigator, is guilty and violated the charges against him as set forth in the 640-hour suspension letter, effective May 14, 2004 and ordering that he shall serve the 640-hour suspension. The Board recommended a 160-hour suspension. (NOTIFICATION) NOTIFIED D.4 05-00636a Copy of Judgment from the City Manager concurring with the Board in finding Brenda Archer, Police Officer, not guilty of the charges against her as set forth in the 10-hour forfeiture of earned overtime disciplinary letter, effective June 15, 2005, thereby reversing the Police Chief's decision. (NOTIFICATION) NOTIFIED City of Miami Page 2
D.5 07-00467 Copy of a letter from John F. Timoney, Director, Department of Police, notifying Larry Jackson, Police Sergeant, of a 40-hour forfeiture, effective March 9, 2007, and a request from Sgt. Larry Jackson, requesting a hearing of appeal relative to his 40-hour forfeiture. A hearing will be scheduled in accordance with Civil Service Rules & Regulations. (NOTIFICATION) RECEIVED AND FILED D.6 07-00468 Copy of a letter from Chief John F. Timoney, Director, Department of Police, notifying Viona Browne-Williams, Police Officer, of an 80-hour suspension, effective April 5, 2007, and a request from Viona Browne-Williams, requesting a hearing of appeal relative to her 80-hour suspension. A hearing will be scheduled in accordance with Civil Service Rules and Regulations. (NOTIFICATION) RECEIVED AND FILED E. E.1 GENERAL ITEMS 06-01039 Copy of Findings of Fact concerning the appeal hearing on behalf of Jair Butron, Police Officer, relative to his 20-hour suspension, effective June 8, 2006. (DISCUSSION) Chairman de la O asked if anyone was present on behalf of Officer Butron. Attorney Rind appeared before the Board and stated that she had no objections to the Findings of Fact. Chairman de la O asked the Department's representative if he had an objection to the Findings of Fact. Assistant City Attorney Jones responded in the negative. Following discussion, the Board entered a motion to APPROVE the Findings of Fact concerning the appeal hearing on behalf of Officer Jair Butron which resulted as follows: Motion by Member Garcia, seconded by Member Dames, that this matter be APPROVED. PASSED by the following vote. E.2 06-01085 Copy of Findings of Fact concerning the appeal hearing on behalf of Emilio Lopez, Police Officer, relative to his 20-hour forfeiture, effective May 30, 2006. (DISCUSSION) After noting that Officer Lopez was not present, Chairman de la O asked the Executive Secretary if Officer Lopez received notice of the proposed findings. The Executive Secretary responded in the affirmative. She went on to say that Officer Lopez did not indicate that he had any objections to the findings. Chairman de la O asked the Department's attorney if he had any objections to the Findings of Fact. City of Miami Page 3
Assistant City Attorney Jones responded in the negative. Following discussion, the Board entered a motion to APPROVE the Findings of Fact concerning the appeal hearing on behalf of Officer Emilio Lopez which resulted as follows: Motion by Member Garcia, seconded by Member Nichols, that this matter be APPROVE. PASSED by the following vote. E.3 06-01714 Copy of Findings of Fact concerning the appeal hearing on behalf of Carlos Antunez, Police Officer, relative to his 40-hour suspension, effective September 18, 2006. (DISCUSSION) The Chairman noted that neither Officer Antunez nor a representative was present to speak on this matter. He asked the Executive Secretary if Officer Antunez received a copy of the Findings of Fact. The Executive Secretary responded in the affirmative. Chairman de la O asked the Department's attorney if he had an objection to the Findings of Fact. Assistant City Attorney Jones responded in the negative. Following discussion, the Board entered a motion to APPROVE the Findings of Fact concerning the appeal hearing on behalf of Officer Carlos Antunez which resulted as follows: Motion by Member Garcia, seconded by Member Cruz, that this matter be APPROVED. PASSED by the following vote. E.4 07-00354 "Motion for Clarification and/or to Amend Request for Hearing" filed by Osnat Rind, Attorney, concerning the grievance hearing of Miguel Hervis, Police Lieutenant. (DISCUSSION) Chairman de la O informed Attorney Rind that he read her Motion and asked if there was anything else she wished to add anything more to her request. Attorney Rind responded in the negative. She went on to say that her motion is self-explanatory, but if the Board has questions she would be happy to answer them. Chairman de la O asked the Department's attorney if he had an objection to Attorney Rind's motion. Assistant City Attorney Jones responded in the affirmative. He went on to say that he disagrees with the assertion that Rule 17.1 should be read as a final finding of the Board. Chairman de la O stated that the Manual of Procedures (the Manual) clearly states that a Rule 17 hearing is final, but the Civil Service Rules do not. He went on to say that the Manual cannot trump the Rule. City of Miami Page 4
Attorney Rind stated that she does not know the creation and history of the Manual, but she would assume that it is the result of some rule, case, or interpretation that already has been made. Chairman de la O stated that the last full sentence of the Rule does appear to say that the Board makes the final decision. He proceeded to read the language into the record as follows, "... any classified employee of the City found guilty of violating this rule by the Board may be dismissed, suspended, or demoted as the Board may determine." Chairman de la O stated that based upon the language included in Rule 17, it appears that the Manual was formulated correctly in interpreting the rule. He asked the Department's attorney what would his position be if the Board interprets Rule 17 as meaning the Board's action would be final. Assistant City Attorney Jones stated that he picked up on the difference between the Civil Service Rules and the Manual. He went on to say that the Manual seems to indicate that the Board's decision is final, but the Civil Service Rule as written does not. Assistant City Attorney Jones further stated that he thinks the Board should look at Rule 17 in relations to the laws included in the City Charter that were used to create the Civil Service Board. He stated that he thinks the intent behind the City Charter, which creates or merits a Civil Service Rule indicates the City Manager has authority to review the decisions of the Board. Chairman de la O stated that he thinks the intent of the Civil Service Rules would govern if there was an ambiguity in the rules. He went on to say that a person would only go to a legislative intent if the words in a rule or law are not clear. Chairman de la O further stated that as he read Rule 17, it states the language, "as the Board may determine"; however, in other sections it is expressly specific such as in Rule 16.1 it states, "... the Board shall make a report to the Director and the City Manager, Rule 16.2 states, "... the Board shall make a recommendation to the City Manager", and Rule 14.1 states, "... the Board shall report its findings to the City Manager"; therefore, he does not think the Board could rely on legislative intent. He stated that it would seem to him that if this is a proper 17.1 action, then the Board would make the final decision. Assistant City Attorney Jones stated that there are two provisions in the City Charter that address Rule 17. He went on to say that the first provision is under subsection J, which speaks to no discrimination in the classified service. Assistant City Attorney Jones further stated that he thinks everyone could agree that the position that is being sought for promotion is an unclassified position which is not governed by the Civil Service Rules; therefore this in and of itself presents a major problem. He stated that his position is the Board has to look back to the sections of the Charter that creates the and look to the general parts of the Civil Service Rules. Chairman de la O stated that he understands Assistant City Attorney Jones' argument, but he does not agree with it because one would not look at legislative intent unless the words were unclear in the Statute. He went on to say that the language is crystal clear; therefore, there is no need to apply legislative intent. Assistant City Attorney Jones stated that he thinks it is spelled out in the City Charter that the intent behind the Rules is that the City Manager would have the authority to review the decisions of the. He went on to say that since Rule 17 is addressed in the Charter and it does not specifically say the Board's decision shall be final, he thinks the Board needs to look back at the establishment of the Board and the power of the City Manager. Cynthia A. Everett, Special Counsel to the Board stated that she is not sure what the City of Miami Page 5
question is, but to a certain extent it seems as if the appellant may be seeking an advanced ruling from the Board. She went on to say that as she looks at Rule 17, it seems that it would be one of those provisions that is self-enacting in the sense that the Board is not really making a determination as discussed earlier, but rather the Board is going to make a decision as to whether or not there is a violation. Special Counsel Everett further stated that if there is a rule violation, there is a rule that is applicable throughout the City that says such a person who has violated this rule is not eligible for certain things. She stated that the Board does not appoint individuals to positions or make similar decisions, so the Board is going to make a determination as to whether or not there was a violation and the other appropriate official should follow the rules of the City in carrying out whatever it is they have to do. Chairman de la O stated that this is one time he sees that the City Manager does not get to overrule the Board's findings of fact. Assistant City Attorney Jones responded that he understands the Board's position, but there is a problem since the position for which Lt. Hervis wishes to be promoted is an unclassified position. Chairman de la O stated that the argument Assistant City Attorney Jones is now making is secondary, but he just wants to clear up the first argument which is whether the Board makes the final decision under Rule 17. He went on to say that the secondary problem is the Board does not see how Lt. Hervis' request would fit under the Board's jurisdiction because he is seeking an unclassified position. Chairman de la O further stated that as he understands it, the ramifications for having violated Rule 17.1 is that the person who commits this prohibited act cannot apply for a classified position, but the persons Lt. Hervis is charging with violating this section are all in the unclassified ranks. He stated that it might be a pyrrhic victory because although Lt. Hervis may win his case he really has not won anything because the Board is unable to reward him with what he is seeking. Chairman de la O went on to say that this case seems to be an EEOC complaint. Attorney Rind stated that it appears that the Chairman is saying the Board would make a finding of fact but offer no remedy. Chairman de la O responded that the Board cannot make a remedy in this case because as he understands Rule 17.1, it is the person who committed a prohibited act (i.e. discriminated against the Appellant) that is no longer eligible for a classified position, but the people responsible in this case are not in a classified position. Attorney Rind stated that she did not think this was correct because hypothetically speaking, if her client was not talking about a position outside of the classified service, but about a police officer who was not promoted to the position of police sergeant, would it be the Board's position that it could not remedy any violation of Rule 17 by either promoting or granting back pay as a remedy. Chairman de la O stated that he is not aware of any, but he is looking [through the Rule] to see if there are any. Special Counsel Everett stated that considering the history of the laws dealing with discrimination and problems in the workplace because there are other remedies for the person who has been discriminated against, that person can seek to make himself whole by those other remedies. She went on to say that Rule 17 seems to want to get to the root of the people who are committing the act for the person who is discriminated against in order to be made whole. City of Miami Page 6
Chairman de la O stated that this rule seems to apply to a first-line supervisor that discriminates against a subordinate. He went on to say that this may be good or bad policy but it is not for the Board to determine. Attorney Rind stated that she understands what the Board is saying, but she does not believe the last sentence that talks about additional punishment that can be meted out to someone who commits the act of discrimination, means that the Board lacks the power to remedy the violation itself. Chairman de la O asked where this remedy exists because it was not in the Rules. He went on to say that if Attorney Rind wants the findings of fact of her client's case, he thinks she is entitled and that she could make whatever use of the findings that she could find; however, the Board has to have a rule to tell them what remedy it can impose. Chairman de la O further stated that if the finding of fact is valuable to Attorney Rind and her client, the Board can provide the document, but the remedy that Lt. Hervis is looking for in this case, the Board cannot provide because of who is involved in the charge. Attorney Rind stated that it appears that the Chairman is taking the position that if a police officer was denied a promotion to the position of police sergeant that the Board would not grant the appellant a remedy in such a case. Chairman de la O stated that actually the Board's inability to grant a remedy in this case has nothing to do with the fact that Lt. Hervis is seeking an appointment to an unclassified position, but it has to do with the rule which says that for a remedy the violator cannot be in classified position for whatever period of time the Board determines. Chairman de la O further stated that the request before the Board today is that the alleged violators are not in classified positions. He stated that the Board has already determined that the Board has jurisdiction although Lt. Hervis is requesting to be appointed to an unclassified position; which is not an issue because it (that decision) can always be revisited. Attorney Rind asked if anyone knows if there was any precedent on this rule with regard to the Board's remedies. Chairman de la O responded that the Executive Secretary recalled two Rule 17 cases, but they both were supervisors in the classified service who were the violators. He went on to say that if the Board can hear the case and provide a finding of fact, he did not know if the Equal Employment Opportunity Commission (EEOC) would take it as presumptive proof. Chairman de la O further stated that if Attorney Rind finds a remedy the Board can impose, this matter can be discussed whenever the hearing is scheduled. He stated that the motion is granted as to the Board having authority which means that the City Manager cannot overrule the Board's finding of fact according to the Board's understanding of Rule 17. For clarification, Special Counsel Everett asked if Attorney Rind's motion is considered withdrawn. Chairman de la O responded in the negative. He went on to say that he believes the motion was granted as to clarification only, meaning that the Board has the final say as to the finding of fact as to whether there was a prohibited practice. Attorney Rind stated that in a very technical sense she would move through Rule 16 because frankly that is the way the Board's documents are created to request a hearing. She went on to say that if it is not required to go through Rule 16 to get a Rule 17 hearing, then she guess this is how it should be amended. City of Miami Page 7
Chairman de la O asked Attorney Rind if she was amending her request to be heard only under Rule 17. Attorney Rind responded in the affirmative. She went on to say that it just makes it clearer that way. Member Cruz asked for the scheduling date for Lt. Hervis's hearing. The Executive Secretary responded that the hearing has not been scheduled yet, but according to the calendar it would be scheduled some time in September 2007. She went on to say that what the Board is looking at in this case is a Rule 16.2 hearing. Chairman de la O responded that the hearing was amended to a Rule 17.1 hearing. He asked the Executive Secretary if she would like to have the amendment in writing. The Executive Secretary responded that there seemed to be some discussion as to whether or not a hearing could be conducted pursuant to Rule 17.1. She went on to say that Rule 17 is simply a violation the same as Rules 5,6,7 and 8. The Executive Secretary further stated that according to Special Counsel Everett's understanding of Rule 17.1 and she understands it the same way, hearings can be granted pursuant to Rules 13, 14, and 16. Attorney Rind stated that she believes that it can go through Rule 16 except that unlike a Rule 16 hearing, the findings are final. Special Counsel Everett suggested that the case of Lt. Hervis be heard pursuant to Rule 16.2. Attorney Rind stated that Rule 16 calls for a recommendation from the Board whereas with a Rule 17 hearing, the Board's decision is final. Chairman de la O stated that Special Counsel Everett is saying to leave the hearing pursuant to Rule 16.2 for the process, but it is still a finding under Rule 17.1. Assistant City Attorney Jones asked if this would just be a factual finding. Chairman de la O responded in the affirmative. He went on to say that the Board cannot issue a remedy unless Attorney Rind finds a remedy. For clarification of the Board's action on this matter, the Chairman, without opposition from other Board Members, APPROVED Attorney Rind's request for a hearing on behalf of her client, Lt. Miguel Hervis, pursuant to Rule 16.2 concerning a violation of Rule 17.1. It is understood by all parties that a finding will be provided, but no remedy unless Attorney Rind can find a rule that says the Board can issue a remedy in this case. No other discussion took place on this matter. APPROVED E.5 06-01096 Copy of request to continue from Brett Sheptow, Attorney, concerning the hearing of appeal on behalf of Javier Gonzalez, Police Officer, relative to his 20-hour suspension, effective June 1, 2006. (DISCUSSION) Attorney Osnat Rind appeared before the Board and stated that the process for employees to obtain legal representation is that the Fraternal Order of Police grants her City of Miami Page 8
office authority to represent various members. Chairman de la O asked for the scheduling history of Officer Gonzalez' case. The Executive Secretary responded that Officer Gonzalez was granted one continuance and that this is his second request for a continuance. Chairman de la O asked for the department's position on the continuance request. Assistant City Attorney Jones responded that he advised Attorney Cohen that he had no objection to his request for a continuance. Attorney Rind stated that it was not her office that asked for a continuance since at this moment, she has not been retained by the FOP for this case. She has however, been informed that the FOP intends to retain their law office. Chairman de la O stated for the Board, that Officer Gonzalez does not yet have counsel, he cannot have counsel until the FOP meets; therefore, he is requesting a second continuance of his appeal hearing. Following discussion, the Board entered a motion to APPROVE Officer Gonzalez' request for a continuance of his appeal hearing which resulted as follows: Motion by Member Garcia, seconded by Member Nichols, that this matter be APPROVED. PASSED by the following vote. E.6 06-02101 Copy of a letter from Reinaldo A. Benitez, Electrical Inspector, withdrawing his request for a hearing pursuant to Rule 16.2, Complaint by Employee. (NOTIFICATION) WITHDRAWN F. F.1 REPORTS 06-02204 Copy of the Monthly Report (March) to the City Commission. (DISCUSSION) PRESENTED F.2 07-00159 Notification of Pending Hearings as of. (NOTIFICATION) PRESENTED F.3 07-00472 Chairman's meeting with the City Manager. (DISCUSSION) Chairman de la O stated that it occurred to him that since he is going to appear in front of the City Commission to present the Annual Report, he would make mention of the meetings are no longer televised since his fellow members want him to champion this cause. Chairman de la O stated that when he met with the City Manager he thought it would only be fair to bring the matter up to the current City Manager since it was his City of Miami Page 9
predecessor who made the decision not to televise the meetings. He went on to say that during his meeting with the City Manager he explained to him that the Board Members who are City employees feel it would be beneficial to resume broadcasting the meetings. Chairman de la O further stated that the City Manager told him that the motivating factor he has found for removing the televised meetings was due to some of the accusations made by some of the witnesses who testified in a previous case heard by the Board. He stated that he explained to the City Manager that those things did occur, but that it was the exception to the rule because most of the hearings considered by the Board are not of that nature and that when employees coming before the Board air such accusations openly more often than not, everyone already knows about them. Chairman de la O went on to say that the City Manager was very receptive to the idea of televising the Board meetings again, that he was open to the points that he discussed with him, and that the City Manager indicated that he would think about the things they spoke about. He further stated that he invited the City Manager to lunch and he agreed that he would join the Board and office staff for lunch some time in the future. Chairman de la O stated that he found the City Manager to be very pleasant and receptive. Chairman de la O stated that he also had a meeting with Brenda Shapiro who is the new Chairperson of the Civilian Investigative Panel (CIP) and as a result, she wanted to know what the did and she shared some thoughts about what CIP is doing. He went on to say that CIP will be sending a representative any time the Civil Service Board has a hearing involving anyone in the Police Department and that Mr. Charles Mays, Special Counsel for CIP is present at today's meeting. He stated that he does not know if Special Counsel Mays will be present at every meeting, but he is present today and he wants everyone to know who he is. No other discussion took place on this matter. PRESENTED G. H. H.1 REQUESTS FOR HEARINGS TODAY'S HEARINGS 07-00355 Hearing on behalf of Christiane Octave, Typist Clerk II, relative to her Unsatisfactory Service Rating for the period ending July 2006. The Board entered into the scheduled Unsatisfactory Service Rating hearing of Christiane Octave, Typist Clerk II. Osnat K. Rind, Attorney at Law, represented the Employee, Christiane Octave. Kevin Jones, Assistant City Attorney, represented the Police Department. Opening statements were made by both attorneys. The Rule of Witnesses was invoked and all witnesses were sworn in individually. Witnesses for the Employee appeared in the following order: 1. Christiane Octave, Typist Clerk II, City of Miami, Department of Police, testified on her own behalf. Questions were posed by Board Member Dames during the testimony of Witness Christiane Octave. City of Miami Page 10
The Employee rested her case. Witnesses for the Department appeared in the following order: 1. Steve Rossbach, Police Lieutenant, City of Miami, Department of Police. 2. Richard Nazur, Police Officer, City of Miami, Department of Police. Questions were posed by Board Members de la O, Garcia, and Dames during the testimony of Witness Richard Nazur. 3. Doretha Hall, Police Sergeant, City of Miami, Department of Police. 4. Marsha Fowler, Clerk III, City of Miami, Department of Police. 5. Albert Vila, Police Lieutenant, City of Miami, Department of Police. Questions were posed by Member Dames during the testimony of Witness Albert Vila. The Department rested its case. Following final argument by both attorneys, Chairman de la O stated that the one thing that bothered him the most was that Ms. Octave was told 90 days in advance [that she was performing poorly], she was given leave, and allowed to take as many training classes that she wished to attend and she did not take advantage of it. He went on to say that Ms. Octave is hardly the only person living in Miami who does not have a car and this is why the City of Miami has a mass transit system. Chairman de la O further stated that it is certainly not beneath anyone to take a bus. He stated that Ms. Octave's office building is located three blocks from Flagler Street, which would have been a straight shot to get to the training location. Chairman de la O went on to say that this must have bothered him the most because it seems to epitomize what is going on. He further stated that he was not sure how he was going to vote because it is just that hard. Chairman de la O stated that sometimes he flip-flops while the hearing is going on, but this case is very troubling. He went on to say that of all the facts he heard, Ms. Octave's reason for not going to the trainings has to bother him the most because he thought that the supervisors went over and beyond by giving her authority to attend training, which means that she would have been out of the office. Member Cruz stated that with regards to Ms. Octave's 330 hours of sick leave usage, he has been out sick for one year on his job. Chairman de la O stated that the rating is not based on Ms. Octave's sick usage and if it was, he thinks it would be illegal. Following discussion the Board entered a motion to ADOPT Ms. Octave's unsatisfactory service rating for the period ending July 2006, with no penalty on the basis that Ms. Octave showed cause satisfactory to the Board why she should not be removed. Under discussion, Member Dames stated that Ms. Octave has been employed with the City of Miami Police Department for 25 years. He went on to say that he would not agree with recommending that Ms. Octave be fired from her job based upon some incorrectly written telephone messages and misspelled words in a letter. Member Dames further stated that he is one who believes in progressive discipline and does not think it would be in line with progressive discipline to fire someone who has been employed for that many years and had never received disciplinary action. City of Miami Page 11
Member Garcia asked Member Cruz if he would be willing to amend his motion to recommend that Ms. Octave be transferred out of the Police Department to another department within the City of Miami that has less demanding responsibilities for a Typist Clerk II. Chairman de la O informed Member Garcia that he would need to hear from Special Counsel Everett regarding his suggestion. Special Counsel Everett stated that she does not believe the Board has that option. She went on to say that she understands the intent, but in terms of the language of the rule, Ms. Octave is here to make a showing satisfactory to the Board as to whether or not she should be removed; therefore, the Board wants to be clear in its finding that Ms. Octave did show or present sufficient cause to remain employed or she did not. She went on to say that she would presume from Member Cruz' motion that he is saying that Ms. Octave presented satisfactory reasons why she should remain employed. Chairman de la O stated that the motion should be that Ms. Octave met the burden of showing that she should not be removed. He went on to say that if the Board were to find that Ms. Octave did not meet her burden, then the Board would have to determine whether to dismiss, demote, or suspend her. Following discussion, the motion on the floor resulted as follows: Motion by Member Cruz, seconded by Member Nichols, that this matter be APPROVED. PASSED by the following vote. No: Member Nichols, Member Garcia, Member Cruz and Member Dames H.2 06-00249 Hearing of appeal on behalf of Juan Casiano, Police Sergeant, relative to his 20-hour forfeiture, effective February 2, 2006. Chairman de la O asked if Sgt. Casiano was present. The Executive Secretary responded in the negative. She informed the Board that Agenda Items H.2 and H.3 pertain to appeal hearings that were scheduled on behalf of Sgt. Juan Casiano. She went on to say that notice was received from Sgt. Casiano requesting a continuance because he has been out ill. The Executive Secretary further stated that she is not sure when he will return to work. Chairman de la O asked for the scheduling history of Sgt. Casiano's two cases. The Executive Secretary responded that Sgt. Casiano previously requested and was granted a continuance of his appeal hearings; therefore this is Sgt. Casiano's second request for a continuance of his appeal hearings. Chairman de la O asked the department's attorney for his position on Sgt. Casiano's request. Assistant City Attorney Jones responded that if Sgt. Casiano is out ill, he does not have an objection. Following discussion, the Board entered a motion to CONTINUE the appeal hearings of Sgt. Juan Casiano which resulted as follows: City of Miami Page 12
Motion by Member Garcia, seconded by Member Nichols, that this matter be CONTINUED. PASSED by the following vote. H.3 06-00250 Hearing of appeal on behalf of Juan Casiano, Police Sergeant, relative to his 20-hour suspension, effective February 7, 2006. The Board took no action on this case because a continuance was granted at today's meeting. Motion by Member Garcia that this matter be CONTINUED. PASSED by the following vote. H.4 06-01095 Hearing of appeal on behalf of Anita Najiy, Police Lieutenant, relative to her 10-hour forfeiture, effective May 31, 2006. A continuance of Lt. Najiy's case was charged to the Board because a prior case took longer than expected, which left no time to hear this case. Chairman de la O advised Lt. Najiy that the chambers had to be vacated; therefore, her hearing would have to be continued. Motion by Member Garcia, seconded by Member Dames, that this matter be CONTINUED. PASSED by the following vote. H.5 06-02046 Hearing of appeal on behalf of James Marshall Jr., Police Sergeant, relative to his 40-hour suspension, effective October 30, 2006. Chairman de la O asked if Sgt. Marshall was present or if anyone has heard from him. The Executive Secretary responded in the negative. Chairman de la O asked if this was the first time Sgt. Marshall's hearing was scheduled. The Executive Secretary responded in the affirmative. Following discussion, the Board entered a motion to CONTINUE the appeal hearing of Sgt. James Marshall which resulted as follows: Motion by Member Garcia, seconded by Member Nichols, that this matter be CONTINUED. PASSED by the following vote. H.6 06-01096 Hearing of appeal on behalf of Javier Gonzalez, Police Officer, relative to his 20-hour suspension, effective June 1, 2006. The Board took no action on this case because a continuance was granted at today's meeting. CONTINUED City of Miami Page 13
ADJOURNMENT: SIGNATURE: The Chairman called for a motion to adjourn. The meeting adjourned at 4:38 p.m. Motion by Member Garcia, seconded by Member Nichols, to APPROVE. PASSED by the following vote. Breaks were taken between 10:42-10:52 AM; 11:50AM-12:09 PM, and 2:14-2:52 PM (Lunch). ATTEST: Miguel M. de la O, Chairman Tishria L. Mindingall, Executive Secretary City of Miami Page 14