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HomeMy Public PortalAbout1994-02-08 Special Meeting-Robinson-CASE 93-1192-CIV-ATKINS.... BAL HARBOUR VILLAGE SPECIAL MEETING FEBRUARY 8, 1994 4:00 P.M. 655 -96th Street Bal Harbour, Florida Re: CASE #93-llj2-CIV-ATKINS Robinson v. Village of Bal Harbour PERSONAL TOUCH REPORTING, INC . (305) 944-9884 MAYOR ESTELLE SPIEGEL ASSISTANT MAYOR MATTHEW B. BLANK COUNCILMAN JAMES E. BOGGESS COUNCILMAN ANDREW R. HIRSCHL COUNCILMAN SOL M. TAPLIN CAROLE SHEROUSE MORRIS, VILLAGE MANAGER RICHARD J. WEISS, ESQ., VILLAGE ATTORNEY JOHN HAMILTON, ESQ. WICKER, SMITH, TUTAN, O'HARE, McCOY, GRAHAM & LANE PERSONAL TOUCH REPORTING, INC. (305) 944-9884 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THEREUPON, THE FOLLOWING PROCEEDINGS WERE HAD: MS. SPIEGEL: This is our special meeting this afternoon at 4 p.m., February 8th, 1994. May we have a role call, please? MS. HORTON: Mayor Spiegel? MAYOR SPIEGEL: Here. MS . HORTON: Assistant Mayor Blank? ASSISTANT MAYOR BLANK: Here. MS. HORTON: Councilman Boggess? COUNCILMAN BOGGESS: Here. MS. HORTON: Councilman Taplin? COUNCILMAN TAPLIN: Here MS. HORTON: Councilman Hirschl? COUNCILMAN HIRSCHL: Here. MAYOR SPIEGEL:. This is our executive session meeting and we will have our attorney speak with us. We will excuse you, Jeanette. (Thereupon, Ms. Horton left the room.) MAYOR SPIEGEL: And Richard, do you stay or leave? MR. WEISS: I am going to stay. MS. SHEROUSE MORRIS: I guess I PERSONAL TOUCH REPORTING, INC. (305) 944-9884 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will just kind of start off by doing some introductions. The gentleman at the end of the table is John Hamilton. He is with the firm of Wicker, Smith, Tutan, and that's as far as I can remember. MR. HAMILTON: ·Et al. MS. SHEROUSE MORRIS: He is the attorney who has been retained by our insurance carrier, Hartford, to represent us in this matter. Just to refresh your memory relative to Executive Session, we can meet --as we are involved in litigation privately and discuss these matters. Obviously, we have a court reporter present. At the conclusion of the litigation, the records and the transcripts of these conversations and these deliberations may be made public. Is there anything else I need to say? MR. HAMILTON: Not as far as I'm PERSONAL TOUCH REPORTING, INC. (305) 944-9884 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conderned. MR. WEISS: I would just add that I think the purpose of the meeting is that MS. SHEROUSE MORRIS: I think John needs to update everybody as to where we stand. MR. WEISS: is that we originally had a lawsuit filed some time ago by one of our police officers. It has been going through the discovery stage with depositions. The lawyer for the insurance company basically is doing his discovery, doing his preparation for the case. We have come to the point now where it has been set for trial? MR. HAMILTON: On the 28th of this month. MS. SHEROUSE MORRIS: On the 28th. MR. WEISS: So that at this point, as you would with a private client, the attorney for the insurance company wanted to sit with us. Mr. Hamilton wanted to sit with us and discuss with PERSONAL TOUCH REPORTING, INC. (305) 944-9884 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 us what he thought about the case, what he thought our possibilities were of winning and losing, our liability, possible settlement, and settlement options, and those kinds of things. Then at the conclusion of the meeting, I would hope that the Council would make some sort of decision as to where the Village stood on this case. John? MR. HAMILTON: First, let me just say briefly that the lawsuit that has been filed in Federal Court is in front of Judge Atkins who is the Senior Judge, and that is now set for February 28th for trial --is essentially a sexual discrimination action filed by Pam Robinson . Although there are other aspects to it, to boil it all down to what she basically claims is that number one, she has to function in a sexually hostile environment and number two, that she was denied a promotion on the basis of her gender . PERSONAL TOUC H REPORTI NG, I NC. (30 5 ) 944-9884 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If, indeed, she has to act within a sexually hostile environment or if she was denied promotion solely on the basis of gender, she has an actionable case under Title 7 and also a Florida statute with regard to sexual discrimination. We have conducted discovery in this case. Your insurance carrier is defending you through our law firm, and we have taken depositions. Basically, we have a pretty good idea of where the Plaintiffs are going to go, what the basis of their lawsuit is, what the thrust of their claim is, and what evidence they are going to use to prove their claim .. Let me say at the outset that until the discovery of a piece of information .that is, in fact, a memorandum that existed in the I.A. file --and we will get into that in just a minute --I felt that the basis of the Plaintiff's claims was not supportable at all. I felt that the claims were simply PERSONAL TOUCH REPORTING, INC. (305) 944-9884 7 1 2 l 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not true and something that a jury would not accept. I still feel that there was no sexual discrimination either in her promotion, nor do I feel that there is a sexually hostile environment. So that you all understand what my personal assessment of the facts are, I don't think that her claims are valid. However, there are certain facts that we have to deal with, and among those facts are that she did qualify when she took the exam. Under the Collective Bargaining Agreement, the Chief has the option of selecting any of the top three qualifiers. There were three qualifiers. The Chief initially selected the person who scored the highest on the exam, which as I understand it from talking to the Chief and others, is traditional. However, a position opened. He had to make another selection, and he chose PERSONAL TOUCH REPORTING, INC. (305) 944-9884 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the third highest on the exam and promoted that person over Pam Robinson. We believe that his choice was a correct one. It was based on a multitude of factors, including the fact that the individual that he selected had far, far more supervisory experience than she did, had longer time engraved with the police force, and in fact was more closely aligned with the purposes of the administration than Pam Robinson was, who had exhibited in the past a refusal to accept the present administration in the police force and was closely aligned with the past administration. We feel those are all facts that are going to come out and will support our defense of this case. However, in the process of discovery, there reared its ugly head a memorandum in an I.A. file. So that you understand COUNCILMAN BOGGESS: Excuse me. What is an I.A. file? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: All right. We will get into that. MS. SHEROUSE MORRIS: Internal Affairs. MR. HAMILTON: There is an Internal Affairs file, and there is a personnel file. In the personnel file for the two police officers who were promoted to Sergeant, this memorandum does not appear. The reason it does not appear in the personnel files is because there was basically no disciplinary action that was taken on this particular memorandum and no .disposition. Unless there is action and disposition, it doesn't go into the personnel file of the individual officer, but it may stay and did stay in an I.A. file. The incident and the memorandum were generated prior to the time that your present Police Chief assumed his position. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So it had nothing to do specifically with his taking action or failure to take action based on what was in the memorandum. In fact, the internal investigation file, internal action file, that it did appear in was actually a matter that dealt with another issue completely. It was during the course of that investigation that this information appeared and that a memorandum was written, and the memorandum was then placed in that I.A. file. No action was ever taken. No disciplinary action was ever taken against the two police officers. Let me tell you briefly what that memorandum dealt with. It dealt with the two police officers who were promoted, now Sergeant Harold and Sergeant Merrill. They were doing some work after hours in uniform in their police cars with a --and I'm not quite sure MS. SHEROUSE MORRIS: It was the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the lighting of the menorah. .MR. HAMILTON: It was the lighting of the menorah. Apparently, they had had some problems with people ignoring the walkways and were walking in the streets and generally having difficulty, and they were on an open channel, and some anti-semitic remarks were made. I can tell you that one of the remarks is extremely objectionable both are objectionable. One is atrocious, absolutely atrocious, and if it is heard by a jury and if the Judge lets it in, it's inflammatory. It has to do with --to put it briefly, "Instead of lighting a menorah, perhaps they should be lighting the ovens." Okay? MS. SHEROUSE MORRIS: Yes. MR. HAMILTON: That is something that is just outrageous, and it will be viewed so by anybody who listens to it. Now, understand that this was never substantiated. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 However, the memorandum that was submitted has within it the comment that Chief Treppeda --who was not Chief at the time --was in the room at the time that this conversation took place on the open channel, heard it, and said words to the effect, "What in the hell are they saying things like that on the channel for?" That implies that he was there in the room. Chief Treppeda has no recollection of this incident. COUNCILMAN HIRSCHL: This is on a tape? MR. WEISS: No, no. ·MR. HAMILTON:• There is a memo that was written by a police officer that basically says this is what occurred. I believe that words to that effect, in fact, were said. I believe that the facts will probably support that they were said. MS. SHEROUSE MORRIS: Can I add two points to this? MR. HAMILTON: Sure. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. SHEROUSE MORRIS: Just because I know some of you will understand. As you know, on the police radio, we have two frequencies. One is the Dade' County frequency. The other is the local frequency. This was on the local frequency. MR. HAMILTON: And short range, so that it would only have been heard simply by people who had access to that frequency, which would have been your police force. No one else. MS. SHEROUSE MORRIS: Exactly. MR. HAMILTON: Chief Treppeda has no recollection of being there. He has no recollection of these comments. When he was making his decision to promote the two individuals to a position of Sergeant, he reviewed their personnel files because that is where he would find any disciplinary actions, whatever he needed to review. At that time, the internal action files --or the I.A. files --were not put in chronological order. They PERSONAL TOUCH REPORTING, INC. (305) 944-9884 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 weren't in any way where he could have --for example, he would have had to go through 10 years of I.A. files in order to locate this particular incident. They are not listed by individual. So he did not review the I.A. files before making his decision in this case. Without this --what I call the smoking gun. Without this highly inflammatory memorandum and situation, I believe the Plaintiffs have no case. With this, they are going to use this as a springboard to suggest, number one, that the Chief maybe did know because the memorandum reflects that he was there. He says he doesn't recall the incident and doesn't recall those words, but they are going to suggest that he did know and that his comment that he didn't review the I.A. file or he didn't remember may not be the truth. And I want to tell you personally I don't believe that. I have had numerous conversations with the Chief. I believe PERSONAL TOUCH REPORTING, INC. (305) 944-9884 15 1 2 3 4 5 6 7 8 9 10 11 · 12 13 14 15 16 17 ., 18 19 20 21 22 23 24 25 him. I think a jury may believe him. It was a long time ago. We are talking MS. SHEROUSE MORRIS: It was 1987. MR. HAMILTON: 1987, so we are talking seven years ago. MS. SHEROUSE MORRIS: This is back where Louise Miller was manager and Vaquero was Chief. MR. HAMILTON: That is a long time .ago. But on the other hand, there is that possibility that a jury may believe that, in fact, he did know about the incident --it wasn't that he forgot and he put a minor importance on on that particular issue. I personally don't believe that, but there is that possibility. MAYOR SPIEGEL: Who discovered this file? MR. HAMILTON: I believe what occurred MS. SHEROUSE MORRIS: I can tell you what happened. PERSONAL .TOUCH REPORTING, INC. (305) 944-9884 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: Well, I will tell you what I believe occurred. I believe what happened was that in looking for a basis to support their claim in this case, that Pam Robinson got access to the I.A. file or learned about the existence of this document and got either got a copy in advance or knew that it was there and sent a request for us to produce it. That is what I believe happened. MS. SHEROUSE MORRIS: You're pretty close. I think what happened probably was, the I.A. investigator on that case was Jim Cooper. Jim Cooper is a very close friend of Pam Robinson's. He was Vaquero's for the lack of a better phrase -- self-appointed successor. Vaquero was grooming Jim Cooper to replace himself --or most probably to do so. I think that's the opinion probably of most officers in the department. At some point, her attorney PERSONAL TOUCH REPORTING, INC. (305) 944-9884 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1 8 19 20 21 22 23 24 25 basically said, "Where is this document? Where is this memorandum?" None of us had any knowledge of its existence until he started bringing up this document that none of us understood, and we started taking the building apart looking for it. COUNCILMAN HIRSCHL: Who wrote the document? MS. SHEROUSE MORRIS: Robert Mo ruzzi. MR. HAMILTON: Moruzzi wrote the document . COUNCILMAN HIRSCHL: One of our stel l ar officers . MS. SHEROUSE MORRIS: Yes. MR . HAMILTON: Correct. COUNCILMAN HI RSCHL: Was he in the Police De p a rtment hearing this over the radio when this came through, and he wrote a memorandum? MR. HAMILTON: That's right. They were i n the room where they could hear the radio, and these comments were made. It was then later documented in an PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 1 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 internal investigation that had nothing to do with these comments. The Chief has testified. I~ his deposition, he was asked about this incident. He said he had no recollection when he was making the appointments. He doesn't recall the incident or the comments. He was asked whether or not if he had known about the comments, would they have impacted his decision with respect to promoting these individuals and he said most likely, it would have. It doesn't mean that he would have promoted Pam, had he been given an option under the Collective Bargaining Agreement not to select her, but he said that these kind of comments, had he been able to take them into consideration, would probably have significantly impacted his decision making with respect to these two individuals. MR. WEISS: What is the legal impact of a factor not considered in an PERSONAL TOUCH REPORTING, INC. (305) 944-9884 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employment decision? MR. HAMILTON: Well, see, that really for me is not the issue because if clearly it was a factor that was not considered because the individual did not have access and we are just talking If you could say, for example, well, the Chief didn't read the I.A. file. Maybe he should have, but he didn't, so if he had known this or if he had done that, he would have found this out and he may have taken that into consideration, that is one thing. Unfortunately --whether it is fortunate or unfortunate --the Chief has no recollection of this, but the memo itself mentions that he was in the room when the comments were made. That takes it out of the box of being something that simply was not considered, to put it in the box of, well, the memorandum says he was there. Now, the suggestion is perhaps it was in his fund of knowledge, and he PERSONAL TOUCH REPORTING, INC. (305) 944-9884 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 chose not to use it as a criteria. So it calls into question his credibility when he says, "I didn't take into consideration in the promotions that I made.tt MS. SHEROUSE MORRIS: I think you also need to remember that at the time this event occurred, this memorandum was written, Al was a corporal. He was just another officer. He was not a part of administration. I was the City Clerk. Al was unaware whether an internal investigation into those comments actually was conducted or not and whether or not those officers were disciplined, because Internal Affairs information is held in strict confidence. MR. HAMILTON: Well, actually, according to -- MS. SHEROUSE MORRIS: It wasn't investigated. MR. HAMILTON: According to the Chief, since he had no recollection of this particular incident, he would not PERSONAL TOUCH REPORTING, INC. (305) 944-9884 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have even known that it occurred, nor would he have sought to locate any particular investigation. If, in fact, there had been an investigation and it had been supported and verified, it would have resulted in some disciplinary action which would have appeared in his personnel file. So his assumption was that since it was not in the personnel file, either it wasn't supported or it wasn't verified. The fact of the matter is that Moruzzi withdrew his complaint. He withdrew it. The reasons for that may come out later, but the fact of the matter is he withdrew his Complaint. I don't think that that is a saving grace, however, because regardless of whether he withdrew it or not, if somebody in a position of authority knew that such a comment was made, I believe that some sort of action would have been taken. COUNCILMAN TAPLIN: Do you have PERSONAL TOUCH REPORTING, INC. (305) 944-9884 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the date that that comment was made? What I'm driving at -- MR. HAMILTON: I do, but it is not off the top of my head. COUNCILMAN TAPLIN: What I am driving at is: If it was at the time that the candles had to be lit, maybe it was said. But if it was not about that time, I don't think anybody would think about lighting the candles or -- MR. HAMILTON: I believe that there will be no doubt that the comment was clearly anti-semitic. COUNCILMAN TAPLIN: But could you MAYOR SPIEGEL: But what was the date? MS. SHEROUSE MORRIS: It occurred during the time of the year --I don't have the precise date in front of me -- but it occurred during the time of the year when the menorah is lit. COUNCILMAN HIRSCHL: December. COUNCILMAN BOGGESS: It was during PERSONAL TOUCH REPORTING, INC. (305) 944-9884 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Chanukah, wasn't it? COUNCILMAN HIRSCHL: Right. MS. SHEROUSE MORRIS: I gave all of the Internal Affairs files to John's office. We are waiting imminently for his office to fax back to us a copy of the memo, but he has all the files. COUNCILMAN TAPLIN: Because, frankly, the point that I am driving at is, if it was at a date that wasn't anywhere near Chanukah -- MS. SHEROUSE MORRIS: No. It was Chanukah. COUNCILMAN TAPLIN: Then this verifies it. COUNCILMAN BOGGESS: To me, the cogent point is this. Chief Vaquero was responsible for the department -- MR. HAMILTON: He was. COUNCILMAN BOGGESS: at that time. Moruzzi made a report which was never substantiated, and he later PERSONAL TOUCH REPORTING, INC. (305) 944-9884 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 withdrew it. The fact that he said Treppeda was there does not, in fact, mean that Treppeda was there. MR. HAMILTON: Right. COUNCILMAN BOGGESS: We don't even know that these comments were actually made, do we? MR. HAMILTON: Let me tell you from the lawyer's point of view that I think there will be sufficient evidence to suggest that the comments were made, and they will get before a jury. COUNCILMAN BOGGESS: Well, the comments are despicable, but -- MR. HAMILTON: My function as a lawyer is not to tell you what the truth is. My function is to tell you what the impact of what the evidence may be that is going to be in front of the jury. MR. WEISS: So what is the impact of this evidence on the case? MR. HAMILTON: I think that it is inflammatory. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think that without it, there isn't much of a basis on which they can claim sexual discrimination in promotion of Pam Robinson. First of all, the agreement clearly allows the Chief to select among the top three. Secondly, because there is sufficient support for his selection of both Merrill and Harold on other criteria that would justify his decision making. I clearly believe that absent that issue, we have a strong chance of winning this case. In addition to that, let me tell you that I don't think that we are precluded from winning, even with that issue. I want to make that clear. MR. WEISS: Mr. Hamilton, I am not sure that I understand. I am not sure and I just need for you to explain to them --how this comes into I mean, you said that it is PERSONAL TOUCH REPORTING, INC. (305) 944-9884 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inflammatory. MR. HAMILTON: Yes. MR. WEISS: If Pam was Jewish, I understand that, but -- MR. HAMILTON: You are the Chief, okay? You are the Chief. "Chief, please explain to the jury considering the qualifications of the individual candidates for this particular position in this community, why you would select two officers who made such clearly anti-semitic remarks and exhibited that degree of insensitivity to a position of authority? "Please explain that." MR. WEISS: Okay. So he says -- MR. HAMILTON: He says, "I didn't think it was that important." MR. WEISS: No. He says, "I don't recall that incident. It was --" COUNCILMAN HIRSCHL: It was in the file, and you said it wasn't in the file. MR. HAMILTON: "But, Chief, --" PERSONAL TOUCH REPORTING, INC. (305) 944-9884 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WEISS: Right, and it was an incident I am not saying that I wasn't there. I just don't recall the comments. I reviewed the MR. HAMILTON: That is obviously our position, that that is what the Chief has testified to. MR. WEISS: Right. MS. SHEROUSE MORRIS: But I want you to assume for the purposes of argument that you have got a jury there, and they don't believe that. MR. WEISS: Okay. So the impact that it has -- MR. HAMILTON: I mean, you have two logical results. They either believe the Chief, or they don't. MR. WEISS: So let's assume they don't believe the Chief. COUNCILMAN BOGGESS: He can also say, "Having worked with all of these officers, I knew from past experience PERSONAL TOUCH REPORTING, INC. (305) 944-9884 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that they had more leadership ability," and he was not aware of this Internal Affairs memorandum. COUNCILMAN HIRSCHL: I understand what you're --it's 50 percent~-it can go both ways. But the issue remains that assuming it was --I mean, Pam Robinson's attorney is going to have to acknowledge the fact that it is not in the personnel file. MR. HAMILTON: Right. COUNCILMAN HIRSCHL: Therefore, it was not of i mportance in determining part of the criteria in who they promoted. MR. WEISS: It wasn't considered by the Chief. MR. HAMILTON: I totally agree with you. I am telling that you without that memo, I wouldn't be sitting here talking to you. COUNCILMAN HIRSCHL: I understand. MR. HAMILTON: With that memo, if PERSONAL TOUCH REPORTING, INC. (305) 944-9884 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the jury does not believe the Chief -- Assuming he jury says, well, you know, he was in the room. It's an outrageous comment . How could he not remember such an outrageous comment, -- MR. WEISS: So then what happens? MR. HAMILTON: --especially when he is in the process of selecting these two individuals for a position of authority. How can he say that, and they can go back into their jury room and they sit down there and they decide: I don't believe the Chief. I believe that he knew about that comment. I believe that that is something that he could not have forgotten whether it existed in the personnel file or not Let me finish. I am talking about, let's assume the jury --that i s their decision making. I have to assume the worst, not the best. MR. WEISS: So then where do they go? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: Then they say well, we don't believe he didn't remember. He has told us under oath he didn't remember. What else don't we believe about his testimony with regards to his decision making concerning these police officers? MAYOR SPIEGEL: Will they be calling the former Chief Vaquero as their witness? MR. HAMILTON: They have him listed. MS. SHEROUSE MORRIS: I thought they did not have him listed. MR. HAMILTON: They have amended their list. MS. SHEROUSE MORRIS: May I see the amended list, please? COUNCILMAN BOGGESS: I should think that all you would have to do is ask the jury the following question: Have any of you ever heard an anti-semitic, an anti-black, an anti-Catholic, an anti-Protestant, an PERSONAL TOUCH REPORTING, INC. (305) 944-9884 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anti-Indian, an anti-Arabic comment made in your presence, and can you tell me what the comment was and the date on which it was made -- MR. WEISS: And who made it? COUNCILMAN BOGGESS: and who made it? No. We have all heard this since we were children, depending who we were with and what was being said. MR. HAMILTON: I agree. COUNCILMAN BOGGESS: None of us remember these things. You slough it off let and -- COUNCILMAN HIRSCHL: He is a good co-counsel. MR. HAMILTON: Do you want to sit at the table? MR. WEISS: Whose final decision was it to make the promotion? MR. HAMILTON: Well, according to the agreement --the final decision is the Chief's according to the agreement, but actually the final decision has to be approved -- PERSONAL TOUCH REPORTING, INC. (305) 944-9884 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was MR. WEISS: By whom? MR. HAMILTON: --up the line. MS. SHEROUSE MORRIS: Vaquero. MR. HAMILTON: Vaquero. MR. WEISS: So the final decision made by Carole. MR. HAMILTON: Right. MR. WEISS: So Carole would also be able to testify that she -- MR. HAMILTON: One of our points and one of the things we are going to stress in this particular lawsuit is that they are claiming that there is sexual discrimination in an environment where basically the final decisions are made MR. WEISS: By women. MR. HAMILTON: By women, and not by men. MR. WEISS: Let me ask you another question. MR. HAMILTON: So I am trying to tell you that my view of the evidence is that everything supports a defense of this case, but one -- PERSONAL TOUCH REPORTING, INC. (305) 944-9884 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WEISS: Memo. MR. HAMILTON: thing that really bothers me, and it bothers me because it is so inflammatory and it calls into question the Chief's veracity. That's what bothers me. I don't have any question about the Chief's veracity. I believe the Chief. I think he may well be believed by a jury. But that issue is most likely going to be before a jury. MR. WEISS: Let me ask you a question. In your reviewing the past practice here, although I know we have the ability to follow the Rule of Three in promotional cases, what has been the practice in terms of -- MR. HAMILTON: Select number one. MR. WEISS: Always? MAYOR SPIEGEL: Why was number one not selected? MR. HAMILTON: Number one was selected. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. SHEROUSE MORRIS: Number one was selected. Number one was Steve Harold. After that, another vacancy came up, at which time Chuck Merrill was promoted. MR. HAMILTON: See, the list is good for a year. MAYOR SPIEGEL: I see. MR. HAMILTON: Within that one year period, another vacancy came up. There were two people who were eligible at that time, Pam and Merrill. Pam scored highest on the test in all factors considered. However, of course, that isn't the only criteria. And she didn't score that much higher, by the way. MS. SHEROUSE MORRIS: No. MAYOR SPIEGEL: I was going to ask how much higher. MR. HAMILTON: No. They were close. MR. WEISS: The history is that they have always taken the top PERSONAL TOUCH REPORTING, INC. (305) 944-9884 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 candidate, always? MR. HAMILTON: As far as I know. When I asked, MS. SHEROUSE MORRIS: As far as we can determine. There haven't been -- MR. HAMILTON: As far as I could determine, they have taken the top candidate. MS. SHEROUSE MORRIS: --that many that were promoted by promotional exam. It wasn't that long ago. MR. HAMILTON: And you have to understand, t here have n't been that many in which there was a vacancy that opened up after the top person was selected. So this is a rather unusual situation where you had more than one opening during a period of time when the list was still valid. Even though we have talked to Burke, who says that in his opinion, if none of the candidates were qualified, you could simply leave the position open and select from another list, there PERSONAL TOUCH REPORTING, INC. (305) 944-9884 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 isn't --I want to let you know that in the Collective Bargaining Agreement, there isn't really any definition as to what you can do under this option. I mean, can you leave the list open? Can you declare the list null and void because you don't like the candidates and proceed to leave the position open? MR. WEISS: Altogether, did only three people take the test? MS. SHEROUSE MORRIS: No. They were about seven who took the test. MR. HAMILTON: No. Seven took it. Only three -- COUNCILMAN BOGGESS: How many women do we have now on our police force? Pam? MR. HAMILTON: Right now? Two. MS. SHEROUSE MORRIS: Two. COUNCILMAN BOGGESS: Two besides MS. SHEROUSE MORRIS: Pam and Madeline Orr. MR. HAMILTON: Madeline was hired after, however, Pam and I believe during PERSONAL TOUCH REPORTING, INC. (305) 944-9884 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the pendency of the claim. MS. SHEROUSE MORRIS: Probably. COUNCILMAN BOGGESS: I thought I saw a third one yesterday or this morning. If not, then one of our police officers needs a haircut. MS. SHEROUSE MORRIS: That's a possibility. MR. HAMILTON: I think there are two. At least, I am aware of two. That was one of the first questions I had I asked. MS. SHEROUSE MORRIS: Only two. If I may, I just want to read this so that everybody knows it and I will pass it around --but it is a very odd fax and it is kind of hard to read. This is the memo, and a it's a 65 form. It's addressed to Lieutenant V . Valladares. Victor was the Lieutenant at that time. The subject is Radio Transmissions, and it is dated 19 March '87, and it says: PERSONAL TOUCH REPORTING, INC. (305) 944-9884 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "At the request of Detective Cooper regarding an investigation he is conducting, the following information is submitted. "On December 30, 1986, I was working plainclothes detail in Bal Harbour Shops observing the parking areas. "At approximately 6:00 to 6:30 p.m. I was in the station squad room doing some paperwork. "Officer Treppeda was also present, as a juvenile had been detained for throwing a rock at a bus. "My hand-held radio was on the desk and it was on and mistakenly still on Channel 6, local, since I had been on that frequency earlier regarding a car that was stolen from the Shop's parking area. "Officer Harold and Higginbotham were working off duty for the Lighting of the Menorah by the Shul of Bal Harbour. "Officer Merrill was working PERSONAL TOUCH REPORTING, INC. (305) 944-9884 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 overtime for the City at the pedestrian crossing at 96th and Harding. "Officer Merrill and Harold were carrying on a conversation, mostly between themselves, but once in a while also engaged in by Officer Higginbotham. ttThe conversation was broadcast on our local Channel 6. Officer Harold said something along the lines that 'They are going to light the menorah now. Maybe we should fire up the ovens.' "That was said with a German accent. "Officer Merrill responded something about "the little kids with their beanies." "Officer Higginbotham said something~ but I don't remember what it was. "Officer Treppeda was amazed at what he had heard and asked me, 'Why are they saying that on the air?' "I attempted to transmit to the trio to stop improper radio procedures, PERSONAL TOUCH REPORTING, INC. (305) 944-9884 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 but they did not copy me. "I later went to them in person and advised them to stop this kind of crap on the air in the future. "This statement is true to the best of my recollection." It's initialed by Bob Moruzzi. MR. HAMILTON: If you remember the date of the memo, MS. SHEROUSE MORRIS: And it was written three months after the event. COUNCILMAN BOGGESS: But December 30th? MS. SHEROUSE MORRIS: That's what it says. COUNCILMAN HIRSCHL: It fluctuates. COUNCILMAN BOGGESS: I know, but -- COUNCILMAN HIRSCHL: Moruzzi makes a comment in here that he doesn't recall himse l f what Officer Higginbotham said. He doesn't recall, yet he was involved in this conversation. MR. HAMILTON: Right. COUNCILMAN HIRSCHL: So I think that has clouds --I think that that PERSONAL TOUCH REPORTING, INC. (305) 944-9884 41 1 2 3 4 5 6 7 8 9 10 11 - 12 13 14 15 16 17 18 19 20 21 22 23 2.4 25 allows Treppeda -- The whole thing clouds. MR. WEISS: Plus, Treppeda was dealing with a juvenile at the time, right? MR. HAMILTON: But don't forget, it also says that at that time Officer Treppeda responded to what he heard and said, "Why are they saying that stuff on the air?" So the memo implies, of course, that he heard what was said. And understand that the memo -- there are some very strange things about the memo. First of all, -- MS. SHEROUSE MORRIS: It's a very strange memo. MR. HAMILTON: --as you will see, it is written substantially after the event supposedly occurred. Nothing was investigated at the time of the event, no action was taken, and in fact this memo was written at the time that I believe Officer Merrill was PERSONAL TOUCH REPORTING, INC. (305) 944-9884 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 being questioned with regards to something totally different and all of a sudden, the memo appears, and it appears in an I.A. file that had nothing to do with this incident. So, you know, there is something going on here that's very strange. COUNCILMAN BOGGESS: The fact that no action was taken on this casts a great doubt on this. If this had actually happened and they know it had happened, I think some disciplinary action would have been taken. MS. SHEROUSE MORRIS: I would have hoped so. COUNCILMAN BOGGESS: So why are we putting so much emphasis on it? COUNCILMAN HIRSCHL: Because they are going to. MR. WEISS: Because it will influence the jury. MR. HAMILTON: I can't assume -- let me put it this way. As I told you at the beginning of PERSONAL TOUCH REPORTING, INC, (305) 944-9884 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my little talk to you, I think there will be sufficient evidence that comes in, even from admissions of the officers involved, that -- MAYOR SPIEGEL: And from the witnesses. MR. HAMILTON: And from the witnesses --that such statements or similar statements were made on the channel. I have to operate under the assumption in evaluating this case that that is going to be proven. I believe that they will prove that. I don't not think that it is going to be an adequate defense to say it never happened. I think that the thrust of our defense has to be what I think the facts are and will support, and that is that it was not a part of any investigation that was ever initiated on it. Officer Treppeda at the time was doing something else and had no present recollection and wouldn't because he PERSONAL TOUCH REPORTING, INC. (305) 944-9884 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 never was involved in any kind of investigation or any action that was taken upon it. So when he made his decision, he was reviewing the personnel files and had no recollection of the incident years later. I think that your comment with respect to that happens to everyone, that they will put aside things that they have heard, that they have heard remarks. We have all heard these kind of remarks and years down the line, we are not going to be able to say that we recall them or who said them or under the circumstances, regardless of whether we are dealing with the person that may have said them. So .I think a jury can accept that okay? I am only concerned about the fact that if they prove --which I believe they will --that they occurred, then a person who was present and heard those PERSONAL TOUCH REPORTING, INC. (305) 944-9884 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 comments --which I think all around this table, we would agree that if in fact they were made, probably some disciplinary action would have been taken as a result of those comments. He was the one who was now making the decision with regards to promotion. He had to evaluate three people, two of whom were involved in this kind of comment, and one of whom was not. MR. WEISS: Have you filed any sort of motions in order to MR. HAMILTON: We are preparing a motion in limine with respect to the admissibility of this, taking the position that it· is obviously so inflammatory, that regardless of what kind of probative nature it may have, that it outweighs MR. WEISS: The Judge will rule on that just before trial. MR. HAMILTON: Yes. He will rule on that before trial. He is not going to rule on it until trial. I mean, he is just not going to PERSONAL TOUCH REPORTING, INC. (305) 944-9884 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do that. MR. WEISS: There is a motion called a motion in limine. You can have a Judge rule on a piece of evidence to say that evidence can't come in, so that the discussion battle about it doesn't come in front of the jury. The Judge sort of deals with it ahead of time and says,• I am not going to allow that in, and that's the end of it. MR. HAMILTON: Basically, a motion in limine can deal wit h a lot of different issues, one of which is, you can't get it in because the rules of evidence say you can't get it in. Another basis is well, all right. It may have some probative value here, but the prejudice to the defense so far outweighs the probative value that it should not be allowed to come in because it will color the entire case, and the jury will make a decision only on this piece of evidence and not on anything PERSONAL TOUCH REPORTING, INC. (305) 944-9884 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 el s e . Of course, the Plaintiff's position will be yes, that is our very point. Our very point is that it is so overriding, it is so important that it is something that clearly he remembered and would have taken into consideration and therefore, his decision on the promotions is suspect because of it. That is their case. COUNCILMAN HIRSCHL: Yet if it was so important, it would have been pursued, which it was not at all. Nothing ever happened with it. It was not substantiated. I don't know if Carole made you aware but Officer Moruzzi MS. SHEROUSE MORRIS: He knows all about Officer Moruzzi. MR. HAMILTON: I know all about Officer Moruzzi. COUNCILMAN HIRSCHL: Are you aware that ex-Chief Vaquero also MR. HAMILTON: I have a wealth of information all of those individuals, PERSONAL TOUCH REPORTING, INC. (3 05) 944-9884 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 and they will have to explain -- I mean, for example, Moruzzi is going to have to explain why he withdrew the complaint If this was so important, if this truly occurred, why did you withdraw your complaint? MR. WEISS: What did he say in his deposition? COUNCILMAN BOGGESS: Why did you wait three months to report it? MR. HAMILTON: Why _did you wait three months to report it, -- COUNCILMAN HIRSCHL: A personal theory, knowing the players back then, is that Chief Vaquero did anything he could to protect "his people," if you want to call it that. He stopped at nothing to do what he did in his own surreptitious ways to make --shall we say --not blackmail type, but certainl y -- MR. WEISS: I just to remind you that this is on the record. COUNCILMAN HIRSCHL: I know it's on PERSONAL TOUCH REPORTING, INC. (305) 944-9884 49 1 2 3 4 5 6 7 8 ·9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the record. MS. SHEROUSE MORRIS: I think -- MR. WEISS: Let me just ask you. What does Moruzzi say in his deposition about this? MR. HAMILTON: We have not taken Moruzzi's deposition. He wasn't listed on their pretrial. I think they have may have added him, but he wasn't listed. MAYOR SPIEGEL: Do we have a list of the witnesses currently? MR. HAMILTON: Yes, we do. MS. SHEROUSE MORRIS: The current witnesses? No. I don't have the current. MR. HAMILTON: Well, they just amended. They had only listed four. MS. SHEROUSE MORRIS: Right. MR. HAMILTON: We had taken all but one of the four. Essentially, you are talking about the same people that were loyal to -- you know, Officer Bleim, Pam Robinson, Mr. Burke who we have taken a sworn PERSONAL TOUCH REPORTING, INC. (305) 944-9884 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statement from, who is not going to help them at all. Mr. Burke is going to completely support our position in this case, which I think will come as somewhat of a surprise to them since they listed him on their pretrial. COUNCILMAN BOGGESS: Is it Officer Burke? MR. HAMILTON: Officer Burke, but he is no longer COUNCILMAN HIRSCHL: Is he retired? MS. SHEROUSE MORRIS: Yes. MR. HAMILTON: Yes. He is retired, but they listed him on their pretrial, and so we took his sworn statement, and his testimony is going to be supportive. MS. SHEROUSE MORRIS: I think you all need to know -- MAYOR SPIEGEL: What is the trial schedule? MR. HAMILTON: It is now presently scheduled for the 28th of February, but you have to understand this is Federal Court. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 51 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we are not the only case on the docket, and they will take criminal cases first. So when we will go, I do not know, but we have to be ready to go by the 28th. MR. WEISS: What is the position of the insurance company? MR. HAMILTON: We attended a mediation with the Plaintiffs, as ordered by the Court. Actually, the Plaintiff's attorney was supposed to get it set up long before he did. I had to call him and remind him to do that because the Judge would not have been happy had we appeared at the pre-trial, which I just went to, and found out that we hadn't mediated it. I did not expect much to happen there because I had gotten a demand from the Plaintiff's counsel before the mediation, which is clearly unacceptable. We went to the mediation. I PERSONAL TOUCH REPORTING, INC. (305) 944-9884 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe that we had offered --I didn't go --but I think we had offered as much as $30,000 to settle the claim. MS. SHEROUSE MORRIS: Something in that area. MR. HAMILTON: Something in that area, and it was not acceptable to the Plaintiff. I think that I have to raise --one of the purposes that I have come here is not just to tell you about the lawsuit because I think Carole could tell you everything you need to know about the lawsuit and what happened. We constantly keep you informed. She complains about the number of letters she gets from me. MS. SHEROUSE MORRIS: This is the file (indicating). MR. HAMILTON: We believe in keeping everybody informed about what is going on. The reason I came is because of something else. The insurance company has, of PERSONAL TOUCH REPORTING, INC. (305) 944-9884 53 1 2 -~ 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 course, their interest in settling the case. They evaluate the economics. They have to pay me. They have to pay the witnesses. They have to look at their exposure under their policy and how much they potentially have to pay on the claims that are being made and they are interested, of course, in protecting their insured and the future business. They are still your carrier, as a matter of fact. However, there is another problem. It doesn't factor into the insurance company's evaluation of the potential in this case, and their obligation to pay under their policy. That is that Pam Robinson is presently a police officer on your police force. Okay? MAYOR SPIEGEL: As is Officer Bleim. MR. HAMILTON: As is Officer Bleim, but Pam Robinson is presently a police officer. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 She is seeking, of course, MS. SHEROUSE MORRIS: Back pay, promotion, -- MR. HAMILTON: back pay, promotion to Sergeant. She is seeking the equitable relief of having the Judge say, okay. There was discrimination in the promotion so you are going to have to be a Sergeant. Make her a Sergeant. Give her the back pay that she is entitled to. She has suffered some degree of discrimination here, so she is entitled to compensatory damages, which are going to be limited to $50,000 --no matter what it is --plus attorney's fees. So those are the economic damages that you are looking at, plus the equitable relief of making her a Sergeant if she wins. MAYOR SPIEGEL: Plus adverse publicity in the paper. MR. HAMILTON: Well, see, the point is that that is not the insurance company's concern. That is one of the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reasons why I am here. The adverse publicity is not really something that they are going to take a look at and say, I am going to pay X amount of money because you guys are going to get some bad press. So you have an interest of your own with respect to this particular issue, which needed to be brought to your attention. Secondly, you have an officer who is making claims --whether valid or not --of sexual discrimination and a sexually hostile environment within this department. If she loses --she can either win or she can lose this case. If she loses this case, she is still an officer. Any action that is done or taken subsequent to this lawsuit with reference to this lady --whether it be promotion or whether it be how she is treated by the Chief or anybody else -- is going to be subject to scrutiny by her lawyer and by Pam Robinson with PERSONAL TOUCH REPORTING, INC. (305) 944-9884 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respect to Title 7, both in a sexually discriminatory position or in a vjolation of the section of Title Seven that says you can't retaliate based on the fact that somebody has brought a lawsuit. Every action that you are going to take with respect to this lady is going to be viewed by her in this context. So I see there is another problem that is particularly a problem for you all, which is: Win or l ose, you still are facing the problem that you have Pam Robinson on your police force. That is something that you all are going to have to consider and evaluate. COUNCILMAN BOGGESS: You know, at Christmastime, all of us here came to the luncheon -- MAYOR SPIEGEL: She was here with her baby. COUNCILMAN BOGGESS: Of course. Pam was here with her new baby. There were other police officers around. Every one of us was aware that this PERSONAL TOUCH REPORTING, INC. (305) 944-9884 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 suit was pending. I didn't see anyone be anything but friendly with Pam, playing with the baby. She was welcomed, just like any other member of our family here. And how she could claim discrimination --and I just don't think it would hold up. Plus the fact I think when this is over, if Chief Treppeda calls a meeting and just said now, this is behind us. Pam is still a member of the family, blah, blah, blah, and get on with our lives. I don't see -- MS. SHEROUSE MORRIS: I think you need to understand --let me give you a little more of the big picture and a little less of the legal picture. MR. HAMILTON: That's fine. (Thereupon, Councilman Taplin left the meeting.) MS. SHEROUSE MORRIS: I think you need to know that John and his associate, Bill Fink who is not here PERSONAL TOUCH REPORTING, INC. (305) 944-9884 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 today, have spent a tremendous amount of time interviewing the employees in this Police Department. I wish I could tell you I had sat here and heard every one of their comments --I -haven't --but you have probably got two or three full days involved in interviewing employees. They have had the luxury as to sit and talk to some of our employees that, frankly, I would lik~ to have. They probably know more about some of the incidents and gossip and all the stuff that goes on in the Police Department than probably anybody else because you have had the opportunity to talk to more of these people. This suit and all of what is going on right now is making an awful lot of employees extremely uncomfortable. Okay? I mean, beyond what you may realize. You have got two Sergeants out there who feel like the world is on their shoulders. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Chief and the Assistant Chief are I mean, myself? Yes. I will be honest. I am concerned about this, and I am upset about this, too. We all are under a great deal of pressure. There are a lot of other officers who, frankly, may be called as witnesses who while going to Traffic Court or Criminal Court doesn't faze them in the slightest, the idea of walking into Federal Court relative to this suit makes them quake in their boots, and they are under a lot of stress. There is especially in view of the fact that many of them feel that they have gone out of their way to extend, for lack of a better phrase, the olive branch to Pam by being cordial at the Christmas party, and the City sent flowers when the baby was born --you know, all of those little things that we do routinely --and she had 90 days paid maternity leave, those kinds of things. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There is a great deal of resentment that she is putting this City and them through all of this. Even if we sit down and call a meeting --I'll be honest with you -- there are going to be some hard fee1ings there for a long time. Even if we do call a meeting and say, "Okay. This is behind us. This is over," the reality is that John is right. This is litigious word? can I use your little a litigious individual, and the next time we have to promote a Corporal, if it is not her, we are going to be back in this room. MR. HAMILTON: Let me say two other things. Let me just give you some examples. There is a memorandum --actually, a concerned citizen letter that went out --that allegedly Pam reviewed before it went out. I n that concerned citizen letter that occurred before the promotions were made for Sergeant, it was stated in PERSONAL TOUCH REPORTING, INC. (305) 944-9884 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there that there is going to be a lawsuit, essentially if Pam doesn't receive the promotion. There is attributed to Pam before the promotions were made a statement that she was going to either be made a Corporal or a Detective or a Sergeant, or she was going to sue. The incidents of a sexually hostile environment which she cites are things like the following: When she was going to have a medical procedure, apparently she revealed to Corporal Merrill what that procedure was. He went home and asked his wife who is a nurse what the procedure was, came back and said, "By the way, Pam, do you know what they are going to do during this procedure?" and told her, and she took that as a sexually hostile event. She says that on occasions, she is pushed aside. In other words, when another officer comes to a scene of a crime, she is pushed aside and they PERSONAL TOUCH REPORTING, INC. (305) 944-9884 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 continue on with the scene of the crime --regardless of whether they are senior or not --and she says that is sexually hostile. She says that at one time point, she got into an argument with an officer and a comment was made, "Well, it must be her time of the month." That is sexually hostile. These are claims that she is making against fellow officers that she took as being sexually hostile types of actions, direct statements, with respect to these individuals. Whether you agree with her assessment or not --I don't. I don't think under the law it is sexually hostile. I think as a matter of law, it is not sexually hostile based on the latest Supreme Court decision. It is not pervasive. It doesn't affect her ability to function in the police force. I don't think they will be sustained, but this is the kind of PERSONAL TOUCH REPORTING, INC. (305) 944-9884 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 individual who is dredging up these incidents --and I use the word udredge" exactly the way it implies who dredges up these incidents to support a claim that somehow she is functioning in a sexually hostile environment. The reason I am here is to tell you that my assessment of this attempt and her use of these kinds of incidents implies to me that you potentially may have a problem in the future --win or lose --with respect to this particular lady and how she is going to view how she is treated in this department. That is something that you are going to have to make a decision on, also, with respect to the bad press that you may receive and the potential that you may have to appoint somebody to Sergeant, which in your own Chief's estimation is not qualified for that position as a result of this litigation, wh i ch definitely is going to be upsetting to the people in the department, I would imagine. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR SPIEGEL: What about a settlement prior to trial? Is there any chance of that? MR. HAMILTON: Well, there is a chance of that, but that is another reason why I am here. The initial demand that I got and I solicited a demand from the Plaintiff's attorney on the following with the following criteria. Number one, it settles the case. Number two, she leaves the force. The reason I asked for that demand was the very reason that I felt that her continued presence is something that, most likely, would result potentially in litigation, whether it is retaliation or not, which is going to be bad for the City. I want to know how much it would cost to get rid of this problem completely, including the problem that I perceived through you all. His comment was, "$200,000." Now, that, quite frankly, is about PERSONAL TOUCH REPORTING, INC. (305) 944-9884 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 four years of her pay, plus smart money. I told him that it was unacceptable. We are not paying that kind of money. And I think it is unacceptable. MAYOR SPIEGEL: What about the back pay? What would that total? MR. HAMILTON: About $17,000, not counting overtime. I believe that there is a potential and I am not saying that it will come to fruition --but I believe that there is a potential for settling this case for less than a hundred thousand dollars, including having Pam resign from the police force. MAYOR SPIEGEL: What about Bleim? MR. HAMILTON: Bleim is the father of her child and her live-in MS. SHEROUSE MORRIS: Boyfriend. MR. HAMILTON: --boyfriend and companion. Allegedly. Let me put it on the record. I don't know for a fact, but allegedly, the father of her child. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I would suggest to you that that is a separate matter that you deal with separately, and you deal with this matter because if you try and have such a global result, it will in my opinion lead you to be doomed in having any positive result in settlement negotiations. So I think you have to put that aside and deal only with this issue. MAYOR SPIEGEL: Just deal with her dismissal. MR. WEISS: John, the bottom line is, aside from the peripheral issue of future liability, the future of what happens with Pam and the department, MR. HAMILTON: Right. MR. WEISS: and MR. HAMILTON: And the memo? MR. WEISS: No. MR. HAMILTON: You are going to keep the memo in? MR. WEISS: Well, let me just f~nish the question. --and the negative publicity to PERSONAL TOUCH REPORTING, INC. (305) 944-9884 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1~ 16 17 18 19 20 21 22 23 24 25 the Village that could come out of either this case or this memo being made public in other words, just the courtroom issue, do you think we can win this case? MR. HAMILTON: I think we have a better than 50 percent chance of winning this case, even with the memo. Of course, I am an eternal optimist, also, and I believe I can win anything. But I think we have a better than 50 percent chance of winning this case. MR. WEISS: Without the memo, you think it's a clear win? MR. HAMILTON: I think without the memo, it's a clear If I had to put percentages --and I hate to do that because nobody has a crystal ball MR. WEISS: And I didn't ask. MR. HAMILTON: but I will do it because I venture where angels fear to tread. ASSISTANT MAYOR BLANK: If you PERSONAL TOUCH .REPORTING, INC. (305) 944-9884 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe that we have a better than 50 percent chance --or a 50 percent chance --of winning this case, -- MR. HAMILTON: Yes. ASSISTANT MAYOR BLANK: therefore, an I.R.S. demand would settle for 50 percent. MR. HAMILTON: Well, I ASSISTANT MAYOR BLANK: And if the case is two hundred thousand, -- MR. HAMILTON: You are absolutely correct. ASSISTANT MAYOR BLANK: and you feel that you can settle it for a hundred, MR. HAMILTON: Well, let me put it this way. I don't think the case is worth $200,000, period. ASSISTANT MAYOR BLANK: That's what they are asking for. MR. HAMILTON: Well, that's what they want. ASSISTANT MAYOR BLANK: Therefore, you believe -- MR. HAMILTON: Well, don't forget, PERSONAL TOUCH REPORTING, INC. (305) 944-9884 69 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ·16 17 18 19 20 21 22 23 24 25 they are saying that she will resign. So there is an opportunity cost to her because she is making about $43,000 a year right now in her job. So you are talking about an opportunity cost to her. If she can go get another job for $43,000 a year within six months, then fine, but if she can't, then she has got that opportunity cost forever. Oh, by the way, as part of any deal with her resigning, she has to get a letter of recommendation. She didn't say who had to write it, but I am assuming that she wants the Chief to write it. MS. SHEROUSE MORRIS: The same question I asked earlier, MR. HAMILTON: The point is, you're right. If there is a chance that we can win this case, it obviously affects the settlement posture of both parties. That is why I think the case can be negotiated for less than a hundred thousand dollars. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Don't forget that her attorney, Mr. Cornell, under the statute has a right to attorney's fees if, in fact, he prevails. So that is also a factor to take into consideration because whatever is paid, he is going to have to take his dollar amount out of. MS. SHEROUSE MORRIS: Can I ask a question here, -- MR. HAMILTON: Yes. MS. SHEROUSE MORRIS: --one that bothers me and that we may have talked about and you may have touched on, but I may just not remember. Okay. We obviously know that Pam has access to this memo, and at this point, she is using this memo in association with the sexual discrimination cause of action. MR. HAMILTON: Correct . MS. SHEROUSE MORRIS: If Pam has this memo, Bob Bleim has this memo, Jose Andrade has this memo, -- MR. HAMILTON: Everybody has got PERSONAL TOUCH REPORTING, INC. (305) 944-9884 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this memo. MS. SHEROUSE MORRIS: I don't think Bob Bleim is going to take the City on. I think Bob realizes that his employment here is of a stature that he is not going to find elsewhere. MR. HAMILTON: Well, we took Bob Bleim's deposition. MS. SHEROUSE MORRIS: Jose would use it in a heartbeat. MR. HAMILTON: Right, but I mean, we MS. SHEROUSE MORRIS: Is there any way that we can be done with this roommate forever? MAYOR SPIEGEL: We haven't brought him into this at all. What is his position? MS. SHEROUSE MORRIS: Jose is a peripheral character. Jose is, I believe, on Pam's witness list. MR. HAMILTON: In fact, his deposition is set for tomorrow. MS. SHEROUSE MORRIS: Yes. He is PERSONAL TOUCH REPORTING, INC. (305) 944-9884 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 being deposed tomorrow. Jose is extremely hostile to the Chief, and has been to the Chief and the Assistant Chief since day one. The classic scene everybody still remembers is Jose standing in the parking lot crying the day Vaquero left. Jose -- COUNCILMAN HIRSCHL: Isn't Mr. Vaquero the godfather of his children? MS. SHEROUSE MORRIS: Probably. I don't know. This letter this "anonymous" letter --attacking the Police Department that went out a couple of years ago, we have reason to believe was probably in some part written by him and Pam. COUNCILMAN HIRSCHL: In addition to, if you recall, the lovely letters we received from Sheila -- MR. WEISS: Levinson. Just to add something to this case. When Carole originally made this decision and the Police Chief, the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 73 1 2 3 4 s 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decision was not made lightly here. I mean, it was something that -- COUNCILMAN HIRSCHL: Decision to do what? MR. WEISS: The decision to make the promotion, -- MS. SHEROUSE MORRIS: The promotion. ·MR. WEISS: to promote these other officers over Pam Robinson. MS. SHEROUSE MORRIS: No. It was not taken lightly. MR. WEISS: It was something that at the time from a legal point of view and aside from this memo --that I was very comfortable that was very defensible. I mean, obviously, the memo was MS. SHEROUSE MORRIS: Something none of us knew about. COUNCILMAN BOGGESS: Were you aware of the memo? MR. WEISS: No. COUNCILMAN BOGGESS: Were you aware of the memo? PERSONAL TOUCH REPORTING, INC. ( 305) 944-9884 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. SHEROUSE MORRIS: No. MR. WEISS: Nobody -- COUNCILMAN BOGGESS: Nobody was aware of the memo. MR. WEISS: And at that time, the decision was -- MS. SHEROUSE MORRIS: Nobody was aware of the memo until her attorney showed it to me. COUNCILMAN BOGGESS: Is it stamped? Do we know that memo was actually MS. SHEROUSE MORRIS: It was in our Internal Affairs file. MR. HAMILTON: No question it was in the file. COUNCILMAN BOGGESS: When was it put in there? MR. HAMILTON: We are assuming in '87. MS. SHEROUSE MORRIS: Yes. Bob Moruzzi hasn't been employed here since, what, maybe '89? Something like '89. MR. WEISS: Anyway, the point I was going to make was that the issues here PERSONAL TOUCH REPORTING, INC. (305) 944-9884 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are --I think there are three issues at least. One is: Are you concerned about the negative publicity if this case goes to trial? And there are two types of negative publicity. One is the sexual discrimination case, and the other one is the anti-semitic case. That's the first issue. The second issue is: Are you interested in having Pam Robinson leave the police force? Is that an important objective that the Council wants to take care of? And the third thing is --and if I was trying this case, I would hope people would do the same thing, irrespective of what we may think about this memo. John is very concerned about the memo and feels ~ike that the City with a has a better than a 50 percent chance, but it's not a slam dunk kind of a case, that it causes some problems in the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. I guess there is a fourth issue, which is: We are insured for this -- MS. SHEROUSE MORRIS: There are limits to the policy. MR. WEISS: I don't know what the limits are. MR. HAMILTON: I can't remember, but the limits are sufficient. They cover the demand of $200,000. I can't make --as you understand, however, about the insurance company. One thing that I do not get involved is in is coverage issues because that would put me potentially in a position of conflict. I either say there is or isn't coverage, and I don't -- MR. WEISS: There is no reservation here, is there? MR. HAMILTON: As far as I know, there is no reservation of rights letter. I can tell you that I spoke -- MR. WEISS: I have never seen one. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. SHEROUSE MORRIS: seen one, either. I have never MR. HAMILTON: I spoke to the insurance company --I want to say Friday --maybe Thursday or Friday. MS. SHEROUSE MORRIS: I leaned on the agent today. MR. HAMILTON: And there were some comments with respect to well, we are not certain that we cover the back pay --but we are not certain we don't --of $17,000. I am not going to venture any opinions about whether they do or don't. That is only a comment that that they made. MR. WEISS: Because I don't think they have given us a reservation of rights -- MR. HAMILTON: MR. WEISS: No. They have not. and I think they have an obligation to let ·us know wher~ we are. MR. HAMILTON: As far as the present status, as I understand it right PERSONAL TOUCH REPORTING, INC. (305) 944-9884 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 now based on the status of my file, they have not made any reservations with respect to coverage of the allegations or the potential damages in this case. MR. WEISS: So you understand, if an insurance company looks at the policy and says, we have received this lawsuit. We think we cover some of it, but we have a question as to whether we cover all of it, they are required to send us a letter that says, we are going to supply you with a lawyer. We are going to defend the case, MR. HAMILTON: Right. MR. WEISS: but we may not cover all the damages. MR. HAMILTON: They haven't done that. The only thing that puts a kicker to this case in terms of fiscal responsibility is the issue of the negative publicity of the memo, the negative publicity of the discrimination should you lose the case, and the potential problems that can occur as a PERSONAL TOUCH REPORTING, INC. (305) 944-9884 79 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 result of Pam's continuing on, on the police force here. Those three things are basically in your basket and give a value to this case over and above what the insurance company will consider in offering money to settle. That's the bottom line. MR .. WEISS: Two last questions: Do you want to settle this case if it is funded by the insurance company? Are you willing to settle this case if the City has to kick in some money? MAYOR SPIEGEL: Well, that's something we have to find out. My point is, in trying to settle the case: Wi·n or lose, she is still on the police force. MR. WEISS: That's right. MAYOR SPIEGEL: When it goes to trial, there are always reporters there. Win or lose, if all of the memo is brought out in public, the attitude people will have when they happen to meet the other two Sergeants on the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 street or the rest of the police force or the entire Council. MR. WEISS: John, is there a way -- I mean, to me, the memo is certainly a key issue here. Is there a way to get an earlier ruling from the Judge on that memo? Because that would change this case. MAYOR SPIEGEL: If it is inadmissible, -- MR. HAMILTON: I am going to give you a legal opinion First, I am going to give you a practical opinion. The practical opinion is that this Judge will probably not rule quickly on such an issue. He may refer it to the Magistrate. The Magistrate will make a decision. Then the Magistrate will send it up to the Judge, and the Judge will make his decision. The second is a legal opinion. The legal opinion is that based on what I know of the rules of evidence, having tried cases for 17 years, is: There is PERSONAL TOUCH REPORTING, INC. (305) 944-9884 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some probative value to this information with regards to the Chief's decision making. Therefore, since there is probative value, it satisfies the requisites for admissibility. The only issue is whether or not the probative value is outweighed by the prejudicial impact, which the Court will consider. Most courts are very reluctant to take away from the jury evidence that is probative --no matter how prejudicial --because the basic underlying philosophy is, let the jury make the decision on the facts that are probative to the issues being tried. So I would say that your chances of having this knocked out on a motion in limine are not good. MR. WEISS: And the other point that I am just thinking about is that irrespective of what happens in this case --settle it, don't settle it, whatever --this is a public record. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This memo is a public record. It is part of the depositions in the Court file, I assume. MR. HAMILTON: Yes. MR. WEISS: It has been produced. There is nothing that prevents one of the other people from sending a copy of this memo to the Miami Herald. I mean, there is nothing that in the context of this lawsuit that we can do to --it is a public record. We can't destroy it MR. HAMILTON: Other than a confidentiality agreement with respect to the memo itself. MAYOR SPIEGEL: It can't be sealed. MR. WEISS: No. MR. HAMILTON: Well, a confidentiality agreement with the Plaintiff -- MR. WEISS: With the Plaintiff, absolutely, but with respect to all these other people in the department MR .. HAMILTON: But the memo is a PERSONAL TOUCH REPORTING, INC. (305) 944-9884 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 public record. MR. WEISS: Right. MR. HAMILTON: That will get discovered. COUNCILMAN BOGGESS: If Sheila Levinson got ahold of it or Vaquero or any number of people, they would love to send it to the Herald. MS. SHEROUSE MORRIS: I would venture that they all have knowledge of this memo. COUNCILMAN HIRSCHL: Personally, the memo does nothing for me. Mr. Boggess made a comment which was very accurate. We all are privy to this. We have all been involved in this in our own way over our lifetimes. The real issue is her continued employment in this City. That is the issue, period. In my opinion, that is the issue. If she continues in this department after the case is settled --or whatever it may be --or it goes to Court and she wins or loses and she is still in the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 department, we are continuing with a lot of problems. MR. HAMILTON: Well, the one thing you have to understand is, -- MAYOR SPIEGEL: If we settle, she's out. COUNCILMAN HIRSCHL: Settling without -- MR. HAMILTON: Title 7 absolutely prohibits and nothing that has been said here in any way implies that this would ever take place --but it absolutely prohibits retaliation against an individual for bringing a Title 7 action. COUNCILMAN HIRSCHL: No one talked about that. MR. HAMILTON: I agree. Nobody has said anybody anything about retaliation. There will be no retaliation. MS. SHEROUSE MORRIS: No. MR. HAMILTON: But what I have to tell you as a lawyer is that any actions that relate to Pam subsequent to this lawsuit --win or lose --will be viewed PERSONAL TOUCH REPORTING, INC. (305) 944-9884 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by her and any attorney in context of, is there any retaliation that is going on. COUNCILMAN HIRSCHL: You have told us --or it has been said here today that this is a litigious individual, period. It has been mentioned here today. This is a woman who -- MR. HAMILTON: I think her attitude about these issues is litigious, yes. COUNCILMAN HIRSCHL: Well, there are comments in our memorandum and individual~ will testify she is not well liked by other officers. She is abrasive and tends to escalate tension when responding to calls. This is nothing new. MR. HAMILTON: No. COUNCILMAN HIRSCHL: This has been going on with her performance for quite some time, and I think that -- I hate to give people money unjustified. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN BOGGESS: So do I. COUNCILMAN HIRSCHL: It ·really irks me to buy out our problems. MR. HAMILTON: I have been doing defense work for 17 years, and you don't know how much I dislike it. COUNCILMAN HIRSCHL: It disturbs me as much as even th~ insurance company saying, let's give her $30,000, without even knowing what is going on here. I find that insulting, too, but that is unfortunately economics and the way of the world. MR. HAMILTON: Well, let me say this. The insurance company knows what is going on. They are fully advised. They are aware of everything you are aware of now and were before they went into that mediation. Their attempt to settle the case was done not only in the interest of economy, but also in the interests of trying to protect you, because they have an insurance policy that obligates them to try and do that. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I don't question their motives in doing so. My function here is to tell you that in this particular case --as I have described --there are interests that go beyond the interests of the insurance company in settling this case that you have and that you ought to consider. MS. SHEROUSE MORRIS: I think -- MR. HAMILTON: Your decision is your decision, but you should know -- COUNCILMAN BOGGESS: What decision are you asking from us? MR. HAMILTON: I am not asking for a decision. I am telling you facts. The decision is yours. If you tell me we don't care, go to trial, that's fine. Let's go. That's not my function. My function is to simply answer your questions and tell you that I think there are issues that you have to deal with, and how you deal with them is of PERSONAL TOUCH REPORTING, INC. (305) 944-9884 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 course strictly up to you. ASSISTANT MAYOR BLANK: Can Officer Bleim come at us with something or other after this is over? After all, he has got child support now. Could he come in with some kind of a reason that -- MR. HAMILTON: No. Based on a settlement with Pam? The answer is no, unequivocal. COUNCILMAN BOGGESS: I am concerned. This memo concerns me. If in fact it is true, it concerns me that we have two officers who would make comments like this, but we don't know this is true. I'm more concerned about the impact this memo would have on their careers than I am about the repercussions on the Village because this is like someone whose son goes out and says something, makes an imprudent statement. Are the parents always held responsible for what is said? And that is the analogy here. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We cannot control what our people say, and if there was, in fact, some truth to this, why wasn't something done about it seven years ago? MS. SHEROUSE MORRIS: Well, you know, Mr. Boggess, part of what you say is part of the reason that Internal Affairs investigations are kept separate. It is the idea that if you are accused of something and a thorough investigation is conducted and it is not substantiated, that shouldn't go in your personnel file. That shouldn't prejudice your career in the future. The problem is, this incident probably took place. The problem is, for some reason --for whatever reason -- MR. HAMILTON: Nobody investigated it. MS. SHEROUSE MORRIS: nobody investigated it, and nobody took action on it then. COUNCILMAN BOGGESS: But there was PERSONAL TOUCH REPORTING, INC. (305) 944-9884 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 an investigation. MR. HAMILTON: No. MS. SHEROUSE MORRIS: COUNCILMAN BOGGESS: No. It says right there at the very beginning, "At Cooper's suggestion," -- MR. HAMILTON: Let me tell you a little bit about this internal investigation file, okay? MR. WEISS: Was the internal investigation file opened up on this incident, or was it on another incident? MS. SHEROUSE MORRIS: No. It was on another incident. MR. HAMILTON: Another incident. MR. WEISS: There was never an internal investigation file opened up on this case? MS. SHEROUSE MORRIS: No, and if you sit and read this internal investigation file, it's hard for me --and I sat and read it one afternoon to even begin to tell you exactly what the investigation was about. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But this one said this one said this thing, but this one said this one said that thing, and somebody else threw in something else, and this memo lands in there, and -- MAYOR SPIEGEL: Hearsay, as you see on television. MR. WEISS: It had nothing to do with this. MS. SHEROUSE MORRIS: No, no. This was like tossed in there MR. WEISS: What was the highest level of command that this memo got to? MS. SHEROUSE MORRIS: It is copied to the Chief. MR. WEISS: Did you take Vaquero's deposition? MR. HAMILTON: Vaquero was not a witness until recently. MR. WEISS: So are you going to take it? MR. HAMILTON: He was added, so we will take him. My function is not to take depositions or preserve testimony of PERSONAL TOUCH REPORTING, INC. (305) 944-9884 92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 people who aren't listed. So now that they have listed him, he will be taken, but Vaquero was not somebody I wanted to preserve testimony on. MR. WEISS: Somebody asked, John, what decision you need a make the insurance company sort of has an independent, somewhat independent, decision MR. HAMILTON: I can tell you that the insurance company's thinking in t~rms of their exposure and the value of this case --to them --is somewhere in the vicinity of $30,000. They probably would --I am not going to say probably. They may come up with some more money in order to avoid trying this case, but that is the range in which they are thinking. So there is a shortfall between what the insurance company thinks is the value of the case to them and what I believe it would take to settle this case with the Plaintiff. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN BOGGESS: I will go for 17 thousand, which is the back way. COUNCILMAN HIRSCHL: Let me ask you a silly question. You know, we're talking about a hundred thousand, two hundred thousand. Are you authorized by the insurance company to negotiate a private settlement with this individual upwards of whatever number? MR. WEISS: $30,000. COUNCILMAN HIRSCHL: I'm a little bit confused on this. MR. HAMILTON: All right. Well, let me tell you what I am authorized to do. I am authorized to represent you pursuant to the insurance policy. I am authorized to make offers to the Plaintiff, based on the money that the insurance company is willing to pay, okay? However, there are cases in which I become involved in which there is an interest over and above the insurance PERSONAL TOUCH REPORTING, INC. (305) 944-9884 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 company's interest, a private interest of the Defendant to settle the matter over and above what the insurance company is willing to pay. In the event that that causes a conflict --I don't think it does in this case because it is not a matter of the insurance company having coverage for the aspect of the case and saying, "I am not going to pay because I don't think there is coverage," and then me coming to you and saying, "Do you want to pay instead of the insurance company?" Because then there is a dispute of coverage. MAYOR SPIEGEL: Right. MR. HAMILTON: There are other concerns here that have nothing to do with the compensatory damages and have nothing to do with the insurance company's obligation to pay that you .may wish to consider and make a contribution toward a settlement. I don't know if you are or not. I am not asking for one. I am saying you PERSONAL TOUCH REPORTING, INC. (305) 944-9884 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ought to consider it. COUNCILMAN HIRSCHL: What has the insurance company authorized you as an upward number in settlement? MR. HAMILTON: Right now, I believe that the last thing they were willing to offer was $30,000 in settlement of this case. Understand that they are looking at their damages. Their damages that they are looking are potentially 17 thousand some-odd dollars in back pay, $50,000 cap on compensatory and punitive damages for the sexually hostile environment. So that is 67,000, plus attorney's fees. I don't know. He hasn't done that much in this case, but maybe his charges are high. How do I know? But let's assume that his attorney's fees are $30,000. I don't know. MR. WEISS: Plus another 20 for you for trying the case 15. MR. HAMILTON: Well, no. I'm saying $30,000 in attorney's fees. So PERSONAL TOUCH REPORTING, INC. (305) 944-9884 96 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we are at $97,000, -- MR. WEISS: Plus what they have to pay you. MR. HAMILTON: Plus what they have to pay me for what I consider to be probably -- ASSISTANT MAYOR BLANK: That makes it an even hundred. MR. HAMILTON: That's five or six dollars a day, plus what they have to pay me for the three or four days that I may be in trial, plus getting ready. I would imagine that that would be somewhere in the vicinity of about 15 to 18 thousand dollars total. COUNCILMAN HIRSCHL: So that would be about $120,000. MR. WEISS: That's what their exposure is. MR. HAMILTON: Their exposure is a hundred and ten, a hundred and fifteen, somewhere around there. I mean, I could write them down, but these numbers are -- COUNCILMAN HIRSCHL: Okay, just -- PERSONAL TOUCH REPORTING, INC, (305) 944-9884 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: His attorney's fees and my attorney's fees are the only things that are really questionable in terms of what -- MAYOR SPIEGEL: And out-of-pocket cost. MR. HAMILTON: Out-of-pocket cost, but there really aren't any experts or anything. It's a matter of we have sent out subpoenas, so they have incurred those costs already. ASSISTANT MAYOR BLANK: How long are we with this insurance company, Carole, approximately? MS. SHEROUSE MORRIS: About three years. This is one of the few policies left anywhere, frankly, on the face of the earth that covers you for this type of suit. I don't know how much longer it will. ASSISTANT MAYOR BLANK: What is our approximate premium? MS. SHEROUSE MORRIS: I don't know PERSONAL TOUCH REPORTING, INC. (305) 944-9884 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 off the top of my head. MR. HAMILTON: So they are not out of the ballpark already in their first attempt to settle this case in terms of their exposure and the potential to win the case, I don't think. They are not out of the ballpark. COUNCILMAN HIRSCHL: You say 30, but we just added up $115,000. MR. HAMILTON: Now, wait a minute. They don't consider what they have to pay to defend the case. That is defense dollars. You have to understand how insurance companies work. There's defense dollars and indemnity dollars. Defense dollars are dollars they pay to defend and the costs of the defense of the case, which comes out of the X pocket. Indemnity dollars is the amount of money they can pay based on what they think their exposure in the case is. I have insurance companies that I represent that pay me a hundred thousand PERSONAL TOUCH REPORTING, INC. (305) 944-9884 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dollars to go try a case that they have a million dollars exposure on and come out and get a zero verdict, and it comes out of X pocket. So what I am telling you is their exposure dollars in terms of what they are going to have to pay -- It's seventeen-fifty plus attorney's fees for the other side. So you are looking at -- MS. SHEROUSE MORRIS: 65, say, 70 or 80. COUNCILMAN HIRSCHL: 67, plus 30, $97,000. MR. HAMILTON: Now, you are also talking maximum on 50. First of all, there are two separate issues here. There is denial of the promotion and the sexually hostile environment. I think as a matter of law, they are not entitled to the sexually hostile environment. So that's $50,000 right off that figure. So you are looking at $17,000, PERSONAL TOUCH REPORTING, INC. (305) 944-9884 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plus attorney's fees. So their exposure may be $47,000. If you figure they have got a better than 50 percent chance of winning, $30,000 is a pretty good offer for them. MR. WEISS: Let me just try to do this. Let's assume for a second that whatever insurance policy we have --and I don't have to argue with them about coverage --that whatever insurance policy we have covers all the damages in this case. In other words, win, lose or draw, it's MS. SHEROUSE MORRIS: It is paid for by them. MR. WEISS: Paid for, and you guys walk away. And the question is, given that scenario given that it is not going to cost you any money one way or another --is there something else here for the Village that the Mayor was talking about or that John and Carole PERSONAL TOUCH REPORTING, INC. (305) 944-9884 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have been talking about that is worth the Village to pay some amount of money to have this officer, who has this sort of negative attitude, who doesn't get along, who causes aggression and the other things that are talked about in the memo --having nothing to do with really this case, is there something that the Village would like to pay to get rid of that? Is that worth something? Do you want to do that? MS. SHEROUSE MORRIS: Richard, MR. WEISS: And the second issue is, is there something that it is worth the Village to pay to not have any potential for this exposure? I mean, those are really the two narrow questions for the Village to decide, and if we are assured by the insurance company that we are covered, those are the really the only two issues for you. MS. SHEROUSE MORRIS: What would it cost, assuming something happens and I have grounds to terminate a police PERSONAL TOUCH REPORTING, INC. (305) 944-9884 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 officer, you know the hearing procedure and such that we have to go through. Ballpark, what do you think it might cost to prepare and do that? MR. WEISS: $5,000. COUNCILMAN HIRSCHL: What did it cost for Moruzzi? MR. WEISS: I would say $5,000. MS. SHEROUSE MORRIS: Okay. MR. WEISS: federal case. $5,000 case. You know, it's not a It's a hearing. It's a MR. HAMILTON: Let me tell you, also, from an economic point of view since I like to look at things from an economic point of view. You are also talking about the fact that you have an obligation right now to Pam Robinson every year to pay her $43,000 a year. Don't forget that. MS. SHEROUSE MORRIS: Yes. MR. HAMILTON: That doesn't necessarily mean that it has to be a factor in your consideration, but if you PERSONAL TOUCH REPORTING, INC. (305) 944-9884 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do effectuate a settlement in this case, as a part of that settlement, Pam agrees to resign. You also eliminate your obligation to pay 43,000 some-odd dollars plus benefits. MR. WEISS: But we would replace her COUNCILMAN BOGGESS: Well, there is no savings there. MAYOR SPIEGEL: We have to pay it to another officer. MR. HAMILTON: Not necessarily at that level. COUNCILMAN HIRSCHL: You're right. Initially, there wouldn't be that same cost. MR. WEISS: But those are really the two issues. Assuming that the insurance company is going to pay, one, do you want to pay some money to get rid of Pam? Number two, is it worth it to the Village to pay some money to do this? And assuming that you don't want to PERSONAL TOUCH REPORTING, INC. (305) 944-9884 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do either one of those, are your instructions to try to the case? COUNCILMAN BOGGESS: I don't think we have the right to sit here and say we are going to spend tax dollars for hush money, which is basically what we would be doing. COUNCILMAN HIRSCHL: I disagree. I don't agree with that posture. COUNCILMAN BOGGESS: I just think we are buying somebody off if we do that. COUNCILMAN HIRSCHL: I look at it differently. MS. SHEROUSE MORRIS: We may be financially resolving what may well end up being a long term problem. COUNCILMAN BOGGESS: Could be. MAYOR SPIEGEL: Because whether we win or we lost, we have got to remember that she is a police officer here. Whether we win or we lose, she is still on the police force. COUNCILMAN HIRSCHL: This individual is not a team player. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: We have all agreed that this information is already Disseminated, and the reasonable possibility is --as expressed by Carole is that it is in the hands of people who would like to use it or will use it against you in whatever way. So with regards to the issue concerning hush money, you are not going to hush anybody up. the information is already gone. That's not going to stop -- MAYOR SPIEGEL: No . That will still come out. COUNCILMAN HIRSCHL: When the Herald gets this, can it be substantiated? The answer is no. They will not print it. And who cares if they do? MR. HAMILTON: The point is that we all know that i t is already disseminated. So you are not stopping anything from be i ng disseminated. MAYOR SPIEGEL: You're not stopping that. PERSONAL TOUCH REPORTING, INC. {305) 944-9884 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The only thing you are stopping is the employment of Pam Robinson. COUNCILMAN HIRSCHL: And again, MAYOR SPIEGEL: And the animosity among the force. COUNCILMAN HIRSCHL: Couch it in terms of an individual who is a licensed police officer, who with a letter of recommendation will go to a different departments and pursue her interests in a different department, in a different environment. MAYOR SPIEGEL: In a different community. COUNCILMAN HIRSCHL: Right. She is certainly welcome to continue in this department, win or lose, but think about it down the road and long term. Is this going to be a team player? And the answer is, no way. COUNCILMAN BOGGESS: No. MR. WEISS: When you say team player, you mean in terms of police work? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN HIRSCHL: Correct, correct. MS. SHEROUSE MORRIS: She is not now. MR. WEISS: Let me just give you one other way to look at it. Let's assume that Chief Treppeda was really unhappy with her performance and she really wasn't doing a good job, for whatever reason. We would say bring disciplinary action, and let's assume that the PBA was going to defend this case, and we were trying to terminate her. Would it be a case that you said, it's worth X to get rid of this officer, and let's say we have sat around and said we don't have that great of a case, but we maybe can win it. What would you pay, if anything, to get rid of this police officer? You know, if she is not a good police officer and she is not going to do well, then at some point perhaps she gets terminated for -- PERSONAL TOUCH REPORTING, INC. (305) 944-9884 108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. SHEROUSE MORRIS: Except you know as w~ll as I do that terminating police officer is tough. MR. WEISS: I agree. COUNCILMAN HIRSCHL: Impossible. ASSISTANT MAYOR BLANK: find other reasons. She will MS. SHEROUSE MORRIS: It's real tough. a It is not like we can say, you are just not a great police officer. MAYOR SPIEGEL: You can't. You can't. MS. SHEROUSE MORRIS: It's tough. MR. WEISS: Well, you can, but the problem is, you have to have identifiable incidents -- MAYOR SPIEGEL: Very difficult -- grounds. COUNCILMAN HIRSCHL: We have all been through this with Mr. Moruzzi. MAYOR SPIEGEL: It's very difficult. MR. WEISS: How hard that was. COUNCILMAN HIRSCHL: It was so PERSONAL TOUCH REPORTING, INC. (305) 944-9884 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 obvious there were problems. Yet it was impossible to terminate --with the difficulty you had in getting it worked out. MR. WEISS: Was Moruzzi the one with the alcohol? MS. SHEROUSE MORRIS: Yes. COUNCILMAN HIRSCHL: Yes, which was a clearcut problem. COUNCILMAN BOGGESS: And we had another problem with Glenn. MR. WEISS: Grundy. Now, Moruzzi, we won that case, and that was the end of it. MS. SHEROUSE MORRIS: We won the case with Moruzzi. MR. WEISS: But I had to try the case, and when -- COUNCILMAN HIRSCHL: And add the element --and let's be very frank --of a different gender in this particular case, this is even a more difficult situation is that we could wrap ourselves into later on. MR. HAMILTON: Well, I can PERSONAL TOUCH REPORTING, INC. (305) 944-9884 110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 guarantee you if you want any guarantees --I can guarantee you win, lose or draw, if a time came when you had to make a decision to terminate Pam Robinson, you would be facing a retaliation lawsuit, in a heartbeat. MAYOR SPIEGEL: All over again. MR. HAMILTON: I have to tell you that right now. You would. COUNCILMAN HIRSCHL: I have made my decision personally on what we should do. Again, I will couch it -- COUNCILMAN BOGGESS: Tell us about it. COUNCILMAN HIRSCHL: I will couch it in terms of not wanting to spend money, but reality is that this a magnifying glass. We live in a very small environment here, with a very small Police Department. I think that it doesn't serve anybody's interests to try and protect the City by defending the case, having this officer back in the department, and PERSONAL TOUCH REPORTING, INC. (305) 944-9884 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 having to tread on eggshells for the rest of your life. It is not going to work. It is not going to work --probably not. MR. HAMILTON: And if they win and get the equitable relief, she will be a Sergeant. COUNCILMAN HIRSCHL: And the next time she is on a call and something isn't go i ng exactly right and "tensions escalate" when she is responding which I am reading from the memo and an officer asks her to step aside and takes over, we are in trouble. We are in trouble again. MAYOR SPIEGEL: And if she wins, she is working at a higher salary. MR. HAMILTON: About $7,000. COUNCILMAN HIRSCHL: I know we really don't want to give any -- MAYOR SPIEGEL: Over a period of years, plus benefits. MR. WEISS: If we enter into some sort of settlement agreement with her or something like that, it has got to go PERSONAL TOUCH REPORTING, INC. (305) 944-9884 112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through the Council, and it has got to be approved at a Council meeting. COUNCILMAN HIRSCHL: At a Council meeting, of course. How do we go about this? Is this just a round table discussion? Do we make a motion? What do we have to do? MR. WEISS: It seems to me that the first step is in terms of the Village is to see whether this case can be settled by the insurance company. COUNCILMAN HIRSCHL: By settled, I think that includes resignation. MR. HAMILTON: My comment to that is, in my opinion, it cannot and I will just tell you right now. I think that the amount of money that they are going to be looking for is going to be in excess of what the insurance company believes the value of this case is because the Plaintiff will be putting a premium on the issue of resignation, and the insurance company is going to say, "That is not our PERSONAL TOUCH REPORTING, INC. (305) 944-9884 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problem." MR . WEISS: John --and I don't ask you this in any MR. HAMILTON: We can settle this cas~ and give her money without the ·resignation and pay X amount of dollars, which they will be willing to do. But when the price goes up because of resignation, they are not going to be willing to do that. MR. WEISS: I mean --and John, I'm not asking this in any sort of a negative way. At some point, the split of the money becomes --there becomes sort of a conflict. I mean, at some point, the insurance company and our interest of the Village is to try to resolve this case, get rid of the officer --if that is what the --at the least cost to the Village. The insurance company would like to settle the case, do their obligation. But the question is: I am PERSONAL TOUCH REPORTING, INC. (305) 944-9884 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wondering whether in order not to deal with that conflict, I wonder whether it would be possible for you to get two numbers from the Plaintiff -- MR. HAMILTON: Absolutely. MR. WEISS: so that it is quantified for them, and so that we don't end up -- MR. HAMILTON: Absolutely. I can do that. My initial thrust of this in getting one number was because I felt that you all would perceive that there is a problem, and that I felt that you had to know what the cost was going to be. I had to know what the outlay was --and I knew it was going to be some fantastic amount that nobody would agree to. I was right, but I clearly will get two numbers. MR. WEISS: In other words, a settlement figure for settling the case. You stay on the force, you settle the case. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: Now, let me tell you a little settlement strategy from my point of view, and that doesn't mean that I am right. I'm just giving you my thoughts. Right now, he is faced with a unified offer. By that, he is only getting $30,000 unified meaning there is only one attorney, one offer. Nobody is distinguishing between who it is coming from -- MR. WEISS: Village and insurance company. MR. HAMILTON: and on what basis it is being paid. It has been my experience in the past that when you bifurcate your offers from different people, the price goes up because now, you have got two payors and one payee. Mr. Cornell is not stupid. Mr. Cornell is going to know that there are separate interests here. He has already mentioned it. He said, "Well, you know, John, you can't PERSONAL TOUCH REPORTING, INC. (305) 944-9884 116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 settle the case unless you get the party involved because this case has more value than simply the compensatory damages. The insurance company is going to pay." He already knows. I mean, he is not a stupid guy. If you begin to telegraph to him what comes from whom, he is going to try and negotiate the price up on your side, I'm just telling you from a negotiating standpoint I believe that to be true, so MR. WEISS: Well, you can just ask him MR. HAMILTON: So what I would suggest I mean, what the insurance company is going to pay is based on what I think the potential exposure is and what they in their own mind are willing to pay before they go to trial on this. That is going to be their contribution. I have already suggested to them what I think the value of the case is from that point of view, and they PERSONAL TOUCH REPORTING, INC. (305) 944-9884 117 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 understand. I have outlined what the damages are, and they have made their decision. They may come up with more money. I would suggest to you that you make a decision as to what you are willing to pay. It may not be enough. He may stick to above a hundred thousand dollars and you · all just tell him, "Sorry. We are not willing to pay that kind of money and neither is the insurance company." But I would suggest that we negotiate this --at least in the beginning --with one demand -- MAYOR SPIEGEL: One, correct. MR. HAMILTON: --from him and not distinguish between who is paying what and what is for what. MAYOR SPIEGEL: Yes, definitely. MR. WEISS: I agree with that, and I wasn't suggesting that you and I would both negotiate with him. What I was suggesting was that the Council needs to quantify what it costs. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: The Council needs to know what the bottom line is, the difference between what the insurance company is willing to pay and what the demand is. That is what you need to know. What I am going to need in order to do that is to find out what amount of money I can negotiate with and find out what that bottom line is. I mean, it's a matter of offer and counteroffer, and I would suggest COUNCILMAN HIRSCHL: I think Mr. Blank made the right suggestion before about 50 percent --50 percent right, 50 percent wrong. ASSISTANT MAYOR BLANK: As long as you thought we had a 50 percent chance, I would be willing to settle for the 50 percent on the bottom line number. And then we can negotiate with the insurance company whoever pays what and COUNCILMAN BOGGESS: I don't like that. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 119 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If they say, we will pay 30, and we just pay whatever . I don't like that. MAYOR SPIEGEL: First of all, if the amount of money that we contribute has to come before a Council meeting, which is a public meeting, they know how much we are going to pay. I would like to get a settlement amount MR. HAMILTON: Before you do that. MAYOR SPIEGEL: --before we have our Council meeting. Then we individually know what we have to pay. We know how much the insurance company will pay. We know what our portion of it will be. But to bring it out and argue this situation at a public meeting, MR. HAMILTON: I agree. ASSISTANT MAYOR BLANK: No. We are not arguing at a public meeting. COUNCILMAN HIRSCHL: Do you have an idea what that number would be? MR. HAMILTON: It is going to be more than $50,000. It may be less than PERSONAL TOUCH REPORTING, INC. (305) 944-9884 120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a hundred. COUNCILMAN HIRSCHL: Is it more than a hundred? MR. HAMILTON: I don't know. Right now, -- MS. SHEROUSE MORRIS: At the mediation, the insurance company offered 30 thousand or initially offered I think 20 or 25, as I understand it. The attorney for Pam came back with, "We are sticking to our guns. We w~nt two hundred thousand." There was a little further discussion. Eventually, the last offer made by the insurance company was 30 thousand. They said something, "Like have a nice day." A conversation or something was said to the effect of, "How would you feel about an offer around a hundred thousand," and -- MR. HAMILTON: The mediator went to the Plaintiff's counsel and said, "What would your attitude be if the offer were a hundred thousand," just as PERSONAL TOUCH REPORTING, INC. (305) 944-9884 121 i 2 3 4 5 6 7 8 9 .0 .1 . 2 .3 .4 .5 .6 .7 .8 .9 !O !l !2 !3 !4 !5 going -- MS. SHEROUSE MORRIS: As being a mediator. MR. HAMILTON: As being a mediator. My understanding from talking to Bill because I wasn't there --my understanding from talking to Bill was, "Well, we are certainly not going to take $50,000, and there is no present offer on the table in that amount. So we are not going to respond to it," type attitude . Well, that kind of response always suggests consideration to me. I mean, if I were going to be the Plaintiff's counsel and I was~'t going to take a hundred thousand dollars, I'd say, "Ain't enough. I'm not even responding to that. I will drop down to a hundred and eighty from two hundred, but you are going to have to come up with more than that to negotiate above a hundred." So my position would be that there is a chance to settle the case for a hundred thousand or below, based on what PERSONAL TOUCH REPORTING, INC. (305) 944-9884 122 1 2 3 4 5 6 7 8 9 10 11 12 ~3 14 15 16 17 18 19 20 21 22 23 24 25 I understand his responses to be. I may find out that I am in error, and he wants no less than a hundred and twenty-five or a hundred and twenty, or whatever, and the insurance company MAYOR SPIEGEL: Is he on a contingency basis? MR. HAMILTON: His fees will be given to him by the Court. MR. WEISS: If he wins. MAYOR SPIEGEL: If he wins. I mean, in a settlement. MR. HAMILTON: Oh, yes. His fees are contingent upon winning. Unless it's a settlement. A settlement -- MR. WEISS: If he loses, he gets nothing. MR. HAMILTON: A settlement is money in hand. MR. WEISS: If he loses, he could get nothing. MR. HAMILTON: But understand that a settlement also means whatever money that is offered, he takes his fees out PERSONAL TOUCH REPORTING, INC. (305) 944-9884 123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of that money. MAYOR SPIEGEL: That's what I meant. He gets --what? --30 or 40 percent? MR. HAMILTON: I would say he gets 33 and a third. MR. WEISS: I think with a City, it's limited to 25 percent. MS. SHEROUSE MORRIS: I just feel the need to say something on behalf of a lot of the employees who kind of feel embroiled and kind of caught in the middle of all of us of this. There is no joy in Mudville, no matter what happens. I mean, there's a lot of mixed feelings and obviously, frankly, a lot of speculation and a lot of rumor going on in the Police Department right now. Obviously, people know this suit is pending. Whenever there is a lawsuit pending, there is a possibility of settlement. Don't think that the Chief or PERSONAL TOUCH REPORTING, INC. (305) 944-9884 124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21,. 22 23 24 25 myself or, frankly, any of the officers who are involved are anxious to see you guys write a check and just make this thing go away. COUNCILMAN HIRSCHL: This sends a bad signal. MS. SHEROUSE MORRIS: It sends a bad signal. It -- bad MR. HAMILTON: That's the bad side. MS. SHEROUSE MORRIS: It leaves a taste in everybody's mouth if we settle, but you know what? If we still have the same old problem, we still have the same old problem. We are not any better off. And God forbid, we lose this thing. MR. HAMILTON: Actually, you are in a worse position. MS. SHEROUSE MORRIS: God forbid. MR. WEISS: And she is a Sergeant. MS. SHEROUSE MORRIS: I mean, God forbid we lose this thing. There is no joy in Mudville. MR. HAMILTON: It's not just that she is a still a police officer, but she PERSONAL TOUCH REPORTING, INC. (305) 944-9884 125 ~-· 1 ~ ~z 3 4 5 6 7 8 9 10 11 1 2 13 14 15 16 17 18 19 20 21 22 23 24 25 is a police officer who has brought and, ·1et's say, lost a sexual discrimination suit. Therefore, any actions taken with respect to her --including termination will be viewed in light of her past history. So you are actually in a worse position. MS. SHEROUSE MORRIS: And there are a lot of officers who already feel that she is being dealt with, with kid gloves and too lightly because of the pending litigation. COUNCILMAN HIRSCHL: I mean, this can't be the first Police Department to have had a problem like this, and MS. SHEROUSE MORRIS: No. COUNCILMAN HIRSCHL: --they can't buckle every time an employee brings a suit up like this. MS. SHEROUSE MORRIS: No, but you know what? I have heard stories, and I have heard officers make comments as recently as a week or two ago in this station --and they were another PERSONAL TOUCH REPORTING, INC. (305) 944-9884 126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 department located not too far away that recently went through a sexual discrimination, sexual harassment lawsuit --and the officer did not prevail. Those officers were complaining still that they still feel that this officer is treated with --not subject to the same rules that the rest of them are and get a lot of privileges because of that. MR. WEISS: Andy, the answer to your question is --and we represent probably two dozen police departments, and every City has got its own philosophy. Some cities, they don't care what they do, like North Miami. They don't care what the cost is. If they think they are right, they go to trial and we win or lose --and we usually win --and if they think they are wrong, they settle. Other cities just don't want to go through the emotional trouble of it, and PERSONAL TOUCH REPORTING, INC. (305) 944-9884 127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 most of the cases get settled. There is sort of a philosophy in each City that changes from time to time, but there is no --I mean, we must have 50 of these cases in the office that we are handling. Half of them, the City is interested in trying. They always want to resolve something some, and say, "Just defend the case. We don~t care what we pay you." MAYOR SPIEGEL: And suppose we win? Let's say the jury disregards hearsay, and MR. WEISS: Then you have got Pam Robinson. MAYOR SPIEGEL: But we still have Pam Robinson. MR. WEISS: And you've got Pam Robinson, right. COUNCILMAN HIRSCHL: You've got her now. COUNCILMAN BOGGESS: That's right. MR. WEISS: You asked me, and I am just telling you that this happens all PERSONAL TOUCH REPORTING, INC. (305) 944-9884 128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the time. I am just trying to answer your question. COUNCILMAN BOGGESS: I don't perceive that we, as a municipality, have done anything wrong in this case. COUNCILMAN HIRSCHL: It isn't a question of right or wrong. It's a question of dollars. MS. SHEROUSE MORRIS: It's not a question of right of wrong. It is a question of whether or not you want to sustain the publicity and endure a trial, which you may possibly win or may possibly lose. COUNCILMAN BOGGESS: Publicity does not concern me. MS. SHEROUSE MORRIS: But you may possibly win this trial, and you may possibly lose this trial. If you win this trial, the worst case scenario is that you now have Sergeant Robinson -- COUNCILMAN BOGGESS: No, if we lose. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. SHEROUSE MORRIS: Excuse me, if we lose. You're right. If she wins, we have Sergeant Robinson. We are paying out back pay. We're compensating her attorney, et cetera. The best case scenario if we go to trial is that we win, and Pam is still a police officer here and we have got the whole set of pending problems that I think John has pretty well outlined for us. COUNCILMAN BOGGESS: Yes, but -- MS. SHEROUSE MORRIS: The other option is -- MR. HAMILTON: Who is going to be your Corporal the next time? Who is going to be promoted to Corporal? MS. SHEROUSE MORRIS: Who is going to be the next detective? Who is going to get the next bicycle assignment? It goes on and on. COUNCILMAN BOGGESS: It is Pam this month. Who is it going to be next month or next year? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We have had a succession of problems. MS. SHEROUSE MORRIS: Yes. MAYOR SPIEGEL: We will be setting a precedent. COUNCILMAN BOGGESS: That's right. How did we sett l e Mrs. Levinson? How was that finally resolved? MS. SHEROQSE MORRIS: You all wrote her a check. Basically, there was an agreement that she would no longer write harassing letters, this, that and the other. MR. WEISS: It was a settlement agreement that was approved by the Council.- COUNCILMAN HIRSCHL: Her and her husband. MS. SHEROUSE MORRIS: Yes. COUNCILMAN BOGGESS: And how much was it? MS. SHEROUSE MORRIS: I don't recall. I want to say it was thirteen thousand or something like that? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It wasn't lot of money. MR. WEISS: No. It was COUNCILMAN BOGGESS: Less. MR. WEISS: It had to do with a certain amount of back pay that we owed her. MS. SHEROUSE MORRIS: Yes. It was severance pay. MR. WEISS: Two or three months months of pay. I remember the discussion was about months of pay. MS. SHEROUSE MORRIS: It wasn't a tremendous amount of money. COUNCILMAN BOGGESS: What about Vaquero? Did we have any problems in his termination? MS. SHEROUSE MORRIS: Mr. Vaquero legally resigned. He did receive some severance pay and his pension settlement and that was that. That was probably in part what may have precipitated Sheila in some of her letters. I don't know. Sheila may have done that, anyway. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: That reminds me. Is Pam entitled to anything upon resignation? Let's say it's a legal resignation. MR. WEISS: No. MR. HAMILTON: Is she entitled to anything at all? MS. SHEROUSE MORRIS: Pension? Oh, no, no. She is MR. WEISS: It is not a negotiating point. She is entitled to it legally, and she is vested in the pension plan. MR. HAMILTON: Well, no. I am trying to consider what she a question of negotiation. it's not What I am concerned about is, what has she got to gain with cash in her pocket from taking this action? I want to know all the parameters. MS. SHEROUSE MORRIS: I would venture that the money she would be looking at from her pension plan and I can play with that number and work on it for you --would probably be in the area of eighteen, twenty, twenty-five PERSONAL TOUCH REPORTING, INC. (305) 944-9884 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thousand dollars, $5,000, somewhere in there. MR. HAMILTON: So in addition to whatever she would be offered or what she is going to get, she would get twenty grand MS. SHEROUSE MORRIS: Plus whatever vacation time she may have. MR. HAMILTON: --in her pocket. MAYOR SPIEGEL: If you can get those figures to us. COUNCILMAN BOGGESS: I believe whatever she has paid into the pension plan, plus the interest on it. MS. SHEROUSE MORRIS: Right. MR. HAMILTON: Contributions by anyone else? By you all? COUNCILMAN BOGGESS: No. MS. SHEROUSE MORRIS: But we just got our statements from the pension plan. Pam was hired six or eight months after I was. Her initial salary was much higher than mine. Mine's a little higher than hers is now. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think my pension, if I looked at my return of contributions, would be in the area of about 18 now. So I would imagine hers would be somewhere in about the same area. COUNCILMAN BOGGESS: About 20, probably. MR. HAMILTON: Don't forget, there are lots of things to consider when negotiating. One is, she has just had a baby. You really don 't know what her attitude is about continuing employment. You a r e operating i n a vacuum. She may have made up her own mind that she really wants to stay home for a period of time, -- MAYOR SPIEGEL: Right. MS. SHEROUSE MORRIS: and, therefore, is looking for a fund of money to allow her to do that and not suffer a decrease in her lifestyle. So my point is there are lots of factors that you will probably never know that can go into what the value of PERSONAL TOUCH REPORTING, INC. (305) 944-9884 135 1 ·2 ·3 4 5 6 7 8 9 10 11 12 . 1J°· 14 15 16 17 18 19 20 21 22 23 24 , 25 the case is for her. MAYOR SPIEGEL: Right. MR. HAMILTON: I can go to the Plaintiff's counsel, and I can say, "I want to tell you that the insurance company is not impressed. I want to tell you that I have spoken to the Council, and they are not impressed, but I have been asked to solicit a bottom line demand because they are not going to make an offer ·in a vacuum. They have to know what it is," and see what I can get him to say. I think that sort of a negotiating tool is usually not very successful because there has to be then a quid pro quo. There has to be an offer because he is not going to give you his bottom line. MAYOR SPIEGEL: Naturally. MR. HAMILTON: And that presents a problem because in order to make an offer above and above what the insurance company is going to pay, you are going PERSONAL TOUCH REPORTING, INC. (305) 944-9884 136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to have to get authority. You have to get that number in your hands, and that will probably be MR. WEISS: John, one of the things that we have used because of the difficulty of dealing with a public client is to say that it is difficult to get these executive sessions together. I don't have the ability to call them on the phone and do that, and if you want any sort of decent offer, you have got to give me your bottom line. These people are all busy. They are working. They are involved in different things. They are not going to get together again. So that may be a way --if you are looking for some reason why --you know, convince him that these people are just not getting together again. One is a realtor -- MS. SHEROUSE MORRIS: We can get closer to the 28th, too. MR. HAMILTON: Let me say something else, too. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I know Ware Cornell. I have known him for a period of years both professionally and not professionally somewhat socially many, many years ago. ware is not a stupid person. Ware has been puffing a lot in this case, by taking the position that you are not going to be able to overcome the impact of this memo and that sort of thing. But I think he was hurt significantly by the presence of that concerned citizen note, which clearly can support the position that Pam is part of a clique that is anti present police administration. Most people will understand clearly that a Police Chief is not going to be inclined to promote somebody when he has got a right to :do so among the top three candfdates, somebody who has a lot of antipathy to his administration. He has now gotten Officer Bleim to say that --you have to know the context of some of the evidence. The Police Chief and your Deputy PERSONAL TOUCH REPORTING, INC. (305) 944-9884 138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Chief are going to testify that Officer Bleim approached them and asked them to go out to lunch. At that luncheon meeting, it was Officer Bleim who brought up the subject of that concerned citizen note and said, "I want you to know that I didn't have anything to do with it, I didn't support it, but it was a product of certain people and Pam did read it, checked the statistics and proofread it for accuracy, et cetera, and it was disseminated ." That is what the testimony will be from our Chief and from his Deputy Chief. Bleim, when we took his deposition, had a different recollection. He recalled that the luncheon meeting was called by the Chief and his Deputy --not by his request --and he said, "Pam didn't have anything to do with it, and I didn't say that." When cross examined about the fact that, "Well, the Chief has a different PERSONAL TOUCH REPORTING, INC. (305) 944-9884 139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recollection. Are you saying that the Chief is wrong, his recollection is in error," he said, "Well, I wouldn't say that. I wouldn't want to dispute the Chief. Maybe I did say that, but I certainly don't recall saying it." So he is riding the fence here. One thing for us is that from a sworn statement that we have taken from Burke, Burke is going to say that, in fact, what the Chief says happened occurred. I don't think we have much prqblem with Bleim's bias, but the point being that this is something that I think that Ware did not anticipate. I think it concerned him because it certainly gives a legitimate basis upon which the Chief could have made his decision. Therefore, I think that his opinion of the case has decreased since he first started. Therefore, I think that his evaluation is perhaps in a range that PERSONAL TOUCH REPORTING, INC. (305) 944-9884 140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ~2 23 24 25 would make this case settleable at a figure lower than a hundred thousand dollars. I am not certain of that, but I think he should consider it. MAYOR SPIEGEL: We l l, that l etter or memo or anonymous letter would probably override the effects of the hearsay on the other memo. MR. HAMILTON: I think it certainly provides a solid basis upon which the Chief could have made his decision with those people remaining. I mean, people will understand that the Chief is reluctant to promote people to positions of authority in his force that are working against him. MR. WEISS: Can I -- MR. HAMILTON: Everybody is going to understand that. Then you get away from was she more qualified? Was she less qualified? Did she have more commendations? Did she have less commendations? You get to a real practical issue PERSONAL TOUCH REPORTING, INC. (305) 944-9884 141 1 2 3 4 5 -. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as to whether anybody in that position, given the right to select two people, would select the one that supports his administration. MR. WEISS: I really think that MR. HAMILTON: I think there is a real plus to that memo, and I think that that has affected his evaluation. So the two hundred is, I think, a fantasy figure. MR. WEISS: I think the bottom line Here is -- ASSISTANT MAYOR BLANK: I think you are in the best position to be able to know what to do. We are not attorneys, and -- MR. WEISS: I really think the bottom line here is that this discussion really has nothing to do with this case COUNCILMAN HIRSCHL: Of course not. MR. WEISS: This discussion has to do with --the bottom line here is: After John packs up and goes back, do you want to have Pam or do you not want to have Pam? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN HIRSCHL: Correct. MR. WEISS: If you don't care about having Pam, -- COUNCILMAN BOGGESS: We would prefer not to. MR. WEISS: If you prefer not to have Pam here at the end of -- MR. HAMILTON: There is always a cost. MR. WEISS: Yes. --not to have Pam, are you willing to spend $50,000 to get rid of Pam? Are you willing to spend $25,000 to get rid of Pam? Well, I hate to be talking like this, but that's what this is. COUNCILMAN BOGGESS: I was wondering how much the members of the police force would contribute. MR. WEISS: Chip in. Well, that's the bottom line because irrespective of the fact of the memo, I was thinking first that maybe we should push the issue of trying to get the memorandum in or out, but it really PERSONAL TOUCH REPORTING, INC. (305) 944-9884 143 1 2 3 4 5 6 7 8 9~ io 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doesn't matter. MR. HAMILTON: No. MR. WEISS: But the point is that no matter what happens with this case, You have to make a decision as to whether you want to get rid of Pam or not. If you want to get rid of her, then there is going to be MS. SHEROUSE MORRIS: A cost of COUNCILMAN HIRSCHL: We are too nice a group of people in trying to protect our own City, making our own Police Department a happy place for people to work in, our municipal area. Here we are trying to protect our small Police Department from any individual who sees things in a different light than the majority, and I think that's pretty sad. In a lot of other departments, they would swallow this person up, and that would be the end of her or him, or whoever it may be. MR. WEISS: When you say swallow PERSONAL TOUCH REPORTING, INC. (305) 944-9884 144 1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 14 1 5 16 17 18 19 20 21 22 23 24 25 them up, -- COUNCILMAN HIRSCHL: They would go about their business, and that would be it. You know, I vacillate with this, obviously. I want to see her go -- COUNCILMAN BOGGESS: We would prefer. COUNCILMAN HIRSCHL: We would prefer to have a nice arrangement where all would be happy, where she would go elsewhere for emp l oyment. MR. WEISS: Is it worth $10,000 for you guys to get rid of Pam? COUNCILMAN HIRSCHL: Are you looking for a number? MR. WEISS: Yes. That's what this is about. ASSISTANT MAYOR BLANK: I would even give her a recommendation. that. MS. SHEROUSE MORRIS: She wants MR. WEISS: Is it worth $10,000? MS. SHEROUSE MORRIS: Yes. COUNCILMAN HIRSCHL: Yes. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN BOGGESS: Well, I said 17 before, so I guess -- MAYOR SPIEGEL: Yes. MR. WEISS: I'm just trying to get a number here. Is it worth $20,000 for her to go? COUNCILMAN HIRSCHL: Yes. MR. WEISS: Maddy? ASSISTANT MAYOR BLANK: I don't want her, period. MR. WEISS: Mayor? MAYOR SPIEGEL: Yes. ASSISTANT MAYOR BLANK: She'll be a sore tooth. COUNCILMAN BOGGESS: I'm holding out at 17 at the present time. COUNCILMAN HIRSCHL: I think it is worth much more to see her go. MR. WEISS: Is it worth $30,000 to see her go? COUNCILMAN BOGGESS: I don't want to get into this game until we find out what COUNCILMAN HIRSCHL: We are talking amongst ourselves. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: I agree. COUNCILMAN BOGGESS: I am not going to say, hey, I will spend twenty-two fifty or 35 thousand -- MR. WEISS: Until we see what they want. ASSISTANT MAYOR BLANK: Right. COUNCILMAN BOGGESS: Until we see what the insurance company is going to do. MS. SHEROUSE MORRIS: Maybe the strategy we need to take is, we had an Executive Session today, that you have some feeling now for the City or what is going on here. We do have a Council meeting next week. This isn't set to go to trial until the 28th. If we absolutely had to, if there was a real valid and viable settlement offer on the table, we could manage to have another Executive Session prior to the 28th, but we can't have two or three. We need to get to a viable offer. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAMILTON: Let me ask some practical questions here. Let's assume --I am now negotiating with him. I need to know what kind of lead time, what kind of effort is involved in getting an approval of whatever money you decide to offer in this case. And secondly, assuming that is not accepted, how difficult it would be to go back to the till if there is more? And let me tell you why COUNCILMAN BOGGESS: Our Council meeting is next Tuesday at 9:30. MR. HAMILTON: Well, that is next Tuesday at 9:30, but what about another Council meeting? How long does it take to MS. SHEROUSE MORRIS: Can this be done in Executive Session, or would this need to be done at a full meeting? MR. WEISS: Well, first of all, I think the answer to your question is that it is very difficult to start That's why I suggested what I PERSONAL TOUCH REPORTING, INC. (305) 944-9884 148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sugge sted MR. HAMILTON: I need to know from you MR. WEISS: It's very difficult from a City's point of view --and it is not also sort of appropriate from a City's point o f view --but it is difficult to start getting involved in I mean, we can't call these people on the phone, they have got to come in from their jobs, they don't get paid for this, and it's difficult. I think that this guy should get one shot. MR. HAMILTON: I am thinking more of you than I am of him. I am trying to make sure that I understand what is the available out there and what can be done so that when I talk to him -- I know what I am going to say to him already. My issue is your i nterests and the parameters of what you can do. MS. SHEROUSE MORRIS: Richard, PERSONAL TOUCH REPORTING, INC . .(305) 944-9884 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could a settlement discussion be an Executive Session? MR. WEISS: What we can do is, we can agree upon what we are going to offer in terms of settlement discussion. Then once an agreement is approved, we can -- COUNCILMAN HIRSCHL: Vote on it at Council. MR. WEISS: We can vote on it in a Council meeting. I want to check the Statute as to whether it even needs to go back to Council because that's that new section of the statute. COUNCILMAN HIRSCHL: Maybe it doesn't have to. MR. WEISS: But you need another meeting like this. MR. HAMILTON: Well, I can tell you right now that I don't -- MS. SHEROUSE MORRIS: We need probably five to seven days to put together another meeting like this. MR. WEISS: Not in terms of PERSONAL TOUCH REPORTING, INC. (305) 944-9884 150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 legalities, but only in terms of people's schedules. MR. HAMILTON: I don't want any -- I mean, you can't do it now, but even in seven days, I am not looking for an amount of money, nor am I going to suggest to him that you have an idea of what kind of money you are going to offer. What I am going to tell him when I call him up is that I have had a meeting --I have sat in a meeting and I am going to tell him that first of all, you know what the insurance company's altitude is. They are negative about this case in terms of the value of this case. Number two, I sat in the meeting and although I can't discuss what went on, I will tell you that there was a lot of resistance to what they felt was paying for this matter, first of all, because the insurance company has the obligation to pay whatever damages. If you go to trial, they know the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 insurance company is going to pay it. So you are really asking them to pay money over and above what they don't have an obligation to pay in settlement of this case. So that is the first negative. The second negative is that they think it may set a bad precedent. They believe the case is defensible after they heard all of this and they are not happy about setting a precedent whereby someone can make a claim that they don't think is valid and paying to have that claim go away. They understand the realities of the world . They will consider taking a request for monies to settle this case, but .you'd better make it a bottom line because one, there is no time -- MAYOR SPIEGEL: One shot. MR. HAMILTON: Two, it's an one shot deal. You better really come to some grips as to what you are going to want because you are only going to have one PERSONAL TOUCH REPORTING, INC. (305) 944-9884 152 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 chance. It is not like you can call a session and approve it because once they ask for money, it is either going to be approved or disapproved, period. MAYOR SPIEGEL: Right. MR. HAMILTON: And you are not going to have a second chance. So you better get very serious very quick, and leave it at that ASSISTANT MAYOR BLANK: I would agree with that philosophy. MAYOR SPIEGEL: No. ASSISTANT MAYOR BLANK: No question about it. They have got to come up with a number. COUNCILMAN BOGGESS: Right. Frankly, right now, I can't tell you which way I would go on this thing because I am very reluctant to pay money this way. ASSISTANT MAYOR BLANK: Jim, we are all reluctant. We have got to find out what he can do, period. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 153 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 17 1 8 -1 9 · .. 2 o . 21 22 23 2 .4 . 25 COUNCILMAN BOGGESS: By all means, let's find out. MR. HAMILTON: He is not going to want to bid against himself, but I'm going to have to tell him that this is an unusual situation. That is, you are not dealing with an insurance company. You are not dealing with a phone call where I can pick up and go back and forth. You are not even dealing with compensatory damages here. You are not talking about an insurance company's exposure· or their exposure in terms of monetary damages. They are not going to have to pay a dime, no matter what happens in this case. You are asking basically for them to consider terminating Pam's employment with them for reasons unassociated with their exposure in this case. They are not really inclined to do that, but they will consider it, but you better get real fast and you've got one shot. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 154 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN HIRSCHL: What happens -- MAYOR SPIEGEL: And remind him that in addition to whatever the settlement is, that she still has the pension amount. She still has that coming, and she should be satisfied. ASSISTANT MAYOR BLANK: Give her one number, and that's it. MR. WEISS: Carole should work that out, in terms of her holidays, vacations, comp time, whatever money she is MS. SHEROUSE MORRIS: I can go ahead and work out those numbers. That's no problem. MR. HAMILTON: I am going to tell him right now, and for at least this, I want to see if I can get an agreement because he is going to explore parameters. I get the impression from what you all have said that, assuming the insurance company stays at $30,000 let's make that assumption, which may PERSONAL TOUCH REPORTING, INC. (305) 944-9884 155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not be a correct assumption --but assuming the insurance company stays at $30,000 in what they are willing to offer in this case, there is absolutely no desire to get to the hundred thousand dollar mark. MAYOR SPIEGEL: No. COUNCILMAN BOGGESS: And if you think they are cheap, -- MR. HAMILTON: Madam Mayor, am I correct in that assessment? MAYOR SPIEGEL: Yes. MR. HAMILTON: Because what I want to say to Mr. Cornell is, if you are talking about a six figure amount to settle this case, forget it. MS. SHEROUSE MORRIS: It is not there. MR. HAMILTON: Don't even give us an offer. We are not interested. MAYOR SPIEGEL: Because--. we have, so walk away. MR. HAMILTON: Is there an agreement to that? Assuming the insurance company PERSONAL TOUCH REPORTING, INC. (305) 944-9884 156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stays at 30 thousand, that they are not willing to pay more than that to settle this case, that would mean that the contribution from you to get to a six figure amount would be $70,000. COUNCILMAN BOGGESS: No way. COUNCILMAN HIRSCHL: A little steep. MAYOR SPIEGEL: No, because if the insurance company pays 30 and she gets approximately 20 out of her pension, she has got 50 right there. And then if we add something to it, she has -- MR. HAMILTON: Now, there is a variable here. There is a variable in the sense that if I go to the insurance company --which I will do, so that you all understand that one of the first things that I am going to do MAYOR SPIEGEL: We need to know. MR. HAMILTON: is to pick up the phone and say, they are not interested in paying lot of money in this case. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 157 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I am going to solicit a demand from the Plaintiff's attorney. I am going to tell him forget a hundred thousand dollars. But if you all are willing to come up from the 30, I need to know now. I need to know if you are going to pay 40 or 45 or 50 to settle this case because if they are, then -- MAYOR SPIEGEL: We know where we stand. MR. HAMILTON: You know where you stand. So I will do that, and I will come to you with that. My impression is they are not willing to come up much over the 30 that they have offered. COUNCILMAN BOGGESS: Well, I will tell you what. Let the courts do their damndest, and let the Miami Herald do what they want to do before I will go along with a $70,000 payment. Then I would really have to be PERSONAL TOUCH REPORTING, INC. {305) 944-9884 158 1 2 3 4 5 6 7 8 9 10 11 12 13 14 J.5 16 17 18 19 20 21 22 23 24 25 - ashamed. MR. HAMILTON: Okay. Well, I need to know the parameters so I can tell him. That makes it clear to me, okay? And I think that is what we ought to tell him, flat out. COUNCILMAN BOGGESS: How do you feel, Estelle? MAYOR SPIEGEL: A reasonable amount, yes, because whether we go to Court or we don't go to Court, that memo is going to be in the file for anybody to bring up. MR. HAMILTON: Correct. MS. SHEROUSE MORRIS: At any time. MAYOR SPIEGEL: And if we don't make a big deal over it and we just say it doesn't mean anything, it never came to fruition, Internal Affairs never did anything so we are not concerned because maybe it's hearsay. MR. HAMILTON: It happened eight years ago, almost. MS. SHEROUSE MORRIS: But maybe PERSONAL TOUCH REPORTING, INC. (305) 944-9884 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that is something that we need to basically say to Ware Cornell. Look, the bottom line is it's there for everybody, and if your client doesn't use it, it's only worth a certain amount of money to us because you know what? Somebody else will. MR. HAMILTON: That is exactly what I am going to tell him. I am going to tell him that this threat of bad publicity and everything -- MS.-SHEROUSE MORRIS: Already exists. MR. HAMILTON: affect them because doesn't even COUNCILMAN HIRSCHL: We don't care. MR. HAMILTON: Their comment was not that they don't care, but MS. SHEROUSE MORRIS: It already exists. MR. HAMILTON: they know that it exists, they know that it is a public record, they know it's in the hands of people who do not have any love for the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 160 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 present administration, that would be willing to do anything to make them look bad. Their assumption is that the memo is going to get out regardless of what happens in this case. So you can forget about that. COUNCILMAN BOGGESS: I'd like to raise one more question. Should the contents of the memo, should this be pursued -at this point? Should this be finalized? .MS. SHEROUSE MORRIS: I don't know if you can, Richard. MR. HAMILTON: I think this is an issue for another meeting and not in the context of this discussion with me. I really do, and I'm not quite sure that you really want to---- MS. SHEROUSE MORRIS: I don't think you can. MR. HAMILTON: --talk about this in this meeting right now. I would suggest to you that, because of the litigation, that this is PERSONAL TOUCH REPORTING, INC. (305) 944-9884 161 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something that you may take up at another time. I will tell you that it's an eight year old, unsubstantiated charge that was withdrawn by the person who made it. For the record, that is the way it exists at the present time. MAYOR SPIEGEL: And remind him of that. MR. WEISS: Was the memo withdrawn, or was the I.A. investigation pursuant to which the memo was found withdrawn? What was withdrawn? I thought it was the I.A. investigation that -- MS. SHEROUSE MORRIS: The whole thing. MR. WEISS: Because the memo wasn't withdrawn. MS. SHEROUSE MORRIS: Oh, no. There is a statement --a signed thing in there, and I don't have it in front of me --by Moruzzi stating that he withdraws his complaint MR. HAMILTON: No. It was a statement that Moruzzi withdrew the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 162 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 complaint with respect to that. MR. WEISS: Oh, with respect to that memo? MR. HAMILTON: Yes. ASSISTANT MAYOR BLANK: I would rather reserve decision until you come back. MR. HAMILTON: Oh, sure. MR. WEISS: We need now to go back into a public meeting. MR. HAMILTON: I just want to say thank you for listening to me. (Thereupon, the meeting was concluded at 6:15 o'clock p.m.) PERSONAL TOUCH REPORTING, INC. (305) 944-9884 163 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF REPORTER STATE OF FLORIDA) ) ss. COUNTY OF DADE) I, CAROLE BERNARD, a Notary Public in and for the State of Florida, do hereby certify that I reported the foregoing Executive Session at the time .and place hereinabove set forth; and that the foregoing pages numbered from 1 to 163, inclusive, constitute a true and correct transcription of my shorthand report of the meeting. WITNESS MY HAND AND SEAL in the City of Miami, Dade County, Florida, this 15th day of February, 1994. CAROLE BERNARD PERSONAL TOUCH REPORTING, INC. (305) 944-9884 164