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Home My Public Portal About16-9206 Defend the Lawsuit brought in Thomas Marko Sponsored by: City Attorney RESOLUTION NO. 16-9206 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, AUTHORIZING THE BROWN LAW GROUP, LLC, TO DEFEND THE LAWSUIT BROUGHT IN THOMAS MARKO, VS. THE CITY OF OPA- LOCKA, FLORIDA, E-FILING # 41780022 (EXHIBIT "A"); PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS,The City is has been sued in Thomas Marko, vs. The City of Opa- locka, Florida; E-filing # 4170022; and WHEREAS,It is in the best interest of the City to defend this lawsuit; and NOW THEREFORE, BE IT RESOLVED THAT THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA: Section 1. The recitals to the preamble herein are incorporated by reference; Section 2. Pursuant to the agreement the City has with The Brown Law Group, LLC, The Brown Law Group, LLC, is hereby authorized to defend the lawsuit Thomas Marko, vs. The City of Opa-locka, Florida; E-filing # 4170022. Section 3. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 22nd day of Tune, 2016. �y . L. ''for Mayor Resolution No. 16-9206 A test to: Approved as to form and legal sufficiency: 1 fit - Jo 1 a Flores Vincent T. Brown, Esq. City Clerk The Brown Law Group, LLC City Attorney Moved by: COMMISSIONER KELLEY Seconded by: COMMISSIONER RILEY Commissioner Vote: 5-0 Commissioner Kelley: YES Commissioner Riley: YES Commissioner Santiago: YES Vice Mayor Holmes: YES Mayor Taylor: YES 5 • IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA THOMAS MARKO, Plaintiff, SUMMONS vs. CIVIL COMPLAINT CITY OF OPA-LOCKA, Defendant. 1,, 'z.. THE STATE OF FLORIDA: To Each Sheriff of the State: YOU ARE COMMANDED to serve this Summons, a copy of the Complaint, in this lawsuit on defendant: City of Opa-Locka, By Serving Mayor, Myra Taylor or in her absence, Vice Mayor, Timothy Holmes, or in his absence any member of the Commissioner pursuant to Ha. Stat. 48.111; at Opa Locka Muncipal Complex, 780 Fisherman Street, Opa-Locka, Florida 33054 A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to Plaintiff's Attorney named below. WILLIAM R. AMLONG Amlong & Amlong, P.A., 500 Northeast Fourth Street Second Floor Fort Lauderdale, Florida 33301 DATED ON CLERK OF THE CIRCUIT COURT As Clerk of the Circuit Court By: As Deputy Clerk Vyamlong3\cpshare\CPW in\HISTORY\160330_0001\1500,13 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA THOMAS MARKO, Plaintiff, SUMMONS vs. CIVIL COMPLAINT CITY OF OPA-LOCKA, Defendant. THE STATE OF FLORIDA: To Each Sheriff of the State: YOU ARE COMMANDED to serve this Summons, a copy of the Complaint, in this lawsuit on defendant: City of Opa-Locka, By Serving Mayor, Myra Taylor or in her absence, Vice Mayor, Timothy Holmes, or in his absence any member of the Commissioner pursuant to Fla. Stat. 48.111; at Opa Locka Muncipal Complex, 780 Fisherman Street, Opa-Locka, Florida 33054 A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to Plaintiff's Attorney named below. Filing # 41780022 E-Filed 05/20/2016 12:58:04 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA THOMAS MARKO, Plaintiff, vs. Complaint — Jury Trial Demanded CITY OF OPA-LOCKA, Defendant. Count I/Whistle-blower Complaint Plaintiff, Thomas Marko, sues defendant, City of Opa-locka, and alleges as follows: Introduction and Summary 1. This is an action brought pursuant to the Florida Whistle-blower's Act, § 112.3187, FLA. STAT. (2015) ("the Act"), by Thomas Marko, whom the City of Opa-locka forced to resign (by explicitly telling him that he would be fired within the hour if he did not do so) as Assistant City Manager shortly after Marko: a. reported, on his own initiative and in writing to City Manager Roy Stephen Shiver, whom the City also fired, that the City was essentially bankrupt due to overspending and gross mismanagement; b. participated at Shiver's request in an investigation of the City's use of restricted funds for unauthorized purposes and systematic refusal to pay up to $8 million in vendor invoices; c. participated at Shiver's request in an investigation by the Governor's Office into the City's financial irregularities, and d. assisted Shiver in his investigation of and successful opposition to an effort by the mayor, Myra Taylor, her husband, Bishop John Taylor, and the City's building official to push through a $272,000 change order on a sewer-pump project, $150,000 of which was to be kicked back to the mayor's husband. Marko seeks money damages, reinstatement or front pay, attorney's fees and litigation expenses, and such other and further relief as is just. Jurisdiction 2. This is an action for damages in excess of $15,000, exclusive of costs and interest, and for injunctive relief. Venue 3. The cause of action arose in Miami-Dade County, Florida, where the City of Opa-locka is located. Parties 4. Thomas Marko ("Marko") at all times material was, prior to being told November 25 to either resign within the hour or he would be fired, an assistant city manager of Opa-locka, and, as such, an "employee" as claimed to have spent on an earlier City sewer-pump station rehabilitation project — with $150,000 to be kicked back to Mayor Taylor's husband. 10. Although Shiver and Marko were never provided with documentation to support the change-order request, Mayor Taylor sponsored a City Commission agenda item to approve the change order. 11. On the day of the Commission's second consideration of this agenda item, Marko advised Shiver, upon information and belief via electronic mail, that as Marko had passed by Building Official Esin "Daniel" Abia's office mid-day, the door had swung open, revealing the contractor, George Howard, Bishop Taylor and Abia huddled together over a document. The door had been immediately closed from within. 12. Later that afternoon, Abia both recommended in writing that the change order should be approved — and joined the contractor in speaking before the commission against City Manager Shiver's opposition to it. 13. During his brief tenure, Marko discovered — and reported in writing to Shiver, who forwarded the information to the Governor's Office — that the City's bank accounts (including restricted/reserved funds to be allocated only to certain city activities) had dwindled from millions of dollars several years earlier to virtually nothing by September 2015. 14. Marko also advised Shiver, on information and belief via electronic mail, of the following: a. Not only did the City's Certified Annual Financial Reports ("CAFRs") for various years leading up to the October 2013-September 2014 envisioned by § 112.3187(3)(b), i.e., "a person who performs services ... for wages or other remuneration." 5. The City of Opa-locka ("the City") is, and at all times material was, a "municipal government entity" and, hence, an "agency" as envisioned by § 112.3187(3)(a). Conditions Precedent 6. All conditions precedent to the bringing of this action have been performed, have been waived or would be futile. General Allegations 7. Roy Stephen Shiver, Jr., the newly-hired city manager of Opa- locka, hired Marko away from a 26-year career with Miami-Dade County September 21, 2015, to assist Shiver in "cleaning up" Opa-locka's financially troubled municipal government. 8. Shortly after hiring Marko, Shiver advised Marko that Mayor Taylor had asked Shiver to illegally funnel monies to her and her husband; that she was corrupt, and that, as a new Assistant City Manager, Marko needed to be very careful when meeting with her. Shiver told Marko that he had reported these matters to the appropriate authorities. 9. In a later discussion, Shiver told Marko that one of Mayor Taylor's corruption initiatives involved the Taylors' request that Shiver participate in approving a $272,000 change order for a construction company owner (George Howard) to recover funds that the company fiscal year contain conflicting statements on the same subjects, but the 2014 CAFR qualified its contents with the observation that "[t]he City of Opa-locka was not determined to be a low-risk auditee" — which the auditor characterized as necessary "wordsmithing." b. Miami-Dade County Transit Surtax monies had not been deposited into the correct City fund but, instead, were expended on unallowed activities. c. The City's bank account balances were so low in October 2015 that: meeting payroll would be a challenge; ii. hundreds of vendors remained unpaid, some for as long as 14 months, and iii. the City Manager must, under those circumstances, notify both the Office of the Governor and the Mayor and City Commission that the City was facing a financial emergency. d. The arrearages in vendor payments were not what Marko initially had been advised by the Finance Director were some $2 million but rather, as Marko had later discovered, on his own initiative and through his own research, some $8 million — a crippling amount of debt that the small city had no possibility whatsoever of paying. e. The City had mishandled the annual renewal of Occupational Licenses for hundreds of business and, as a result, the City's revenue for business licenses was considerably below where it should have been. 15. An analysis prepared by Marko revealed that the City had approved purchases of goods and services far in excess of the city's income, using restricted funds (e.g., money earmarked for water-and-sewer maintenance) to pay salaries and for purchases outside of the scope of the restrictions. 16. Shiver routinely advised the mayor and commissioners during October and November 2015 of Marko's written findings that their spending had left the City nearly "bankrupt." 17. Marko reported to Shiver in writing during this period, so that Shiver could report to the Office of the Governor, on the City of Opa-locka's state of affairs — including but not limited to Marko's findings about "unpaid invoices and stale checks," i.e., that the City was printing accounts-payable checks, but not mailing them, because, as Marko quoted the City's Finance Officer, "if we mailed them out, they would bounce." 18. Meanwhile, the mayor's husband, Bishop Taylor, unexpectedly visited Marko's office for 15 to 20 minutes in October, opening the conversation by saying, "I'm here to meet with you as my wife wants me to size you up." 19. During that visit Bishop Taylor questioned Marko, "Why would you want to work in the black community of Opa-locka?," to which Marko responded, "Because, in part, I want to help make a positive difference for the residents in Opa-locka" — prompting Bishop Taylor to respond that no City Manager or Assistant City Manager would ever affect any change in Opa-locka, that those management positions were meaningless and that the Mayor solely runs things in Opa-locka. 20. Marko participated, at Shiver's request, in the Office of the Governor's investigation of the City's irregular finances, including in a November 5 conference call with Chief Inspector General Melissa Miguel. 21. Mayor Taylor, at a City Commission meeting November 12, exercised her "Chair privilege" to counter the allegations of mismanagement with an anti-white tirade that lasted 20 minutes or so and targeted Marko and Shiver as the "white-man" administration. 22. Mayor Taylor refused to stop when City Attorney Vincent Brown cautioned her against using racial slurs, telling Brown, "I hear you speaking but I'm not going to acknowledge you." 23. She then accused Marko and Shiver of leaking information to the Governor's Offce and to the news media about Opa-locka's financial problems, predicted that the City would recover financially, reiterated that she "is a strong black woman," accused Marko and Shiver as orchestrating the leaks "to create a division in the City Commission so that the management can fix the situation and the word will get out that it took the white man to come in and straightedn out black folks" and requested that Marko and Shiver resign. 24. After ignoring another request to cease speaking in racial terms, this one from Yvette Harrell, an assistant city attorney, Mayor Taylor then instructed City Attorney Brown to prepare two resolutions for the next Commission meeting: a. firing Shiver as city manager, and b. instructing the City Administration to find funds to rehire the 13 persons whose jobs had been eliminated at the request of the City Commission to balance the budget. 25. The City Commission voted 3-1 twelve days later, November 24, to fire Shiver as city manager. 26. The following day, November 25, David Chiverton, the interim City Manager, called Marko to his office around 11:20 a.m., told Marko, "You know what I gotta do, right?" and then said that notwithstanding that Chiverton had spent the previous 24 hours arguing with the mayor to retain Marko ("Oh, God, we need help. We need your help. We need your expertise."), Marko had until noon to resign or he would be fired. 27. The City's misapplication of the restricted-use revenues, its failure to pay $8 million in vendor resources, its attempt to fund a sewer- project change order from which Bishop Taylor would get a $150,000 slice and its loss of revenue through the mishandling of the annual renewal of occupational licenses was either: a. a violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public's health, safety, or welfare; or b. an act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor, as envisioned by § 112.3187(5)(a) and (b), FLA. STAT. (2015). 28. Marko's issuance of his reports to Shiver, so that Shiver could pass them on to the Governor's Office, and his following Shiver and the Governor's Office's instructions to investigate other matters, each constituted behavior that was protected by § 112.3187(7), i.e., a. disclosure of information on Marko's own initiative in a written and signed complaint; or b. participation by Marko, at the request of Shiver and the Office of the Governor, in an investigation, hearing, or other inquiry conducted by any agency or federal government entity; or c. Marko's filing a written complaint to his supervisory officials. 29. The City has retaliated against Marko by forcing his resignation, which constitutes an "adverse personnel action" as envisioned by § 112.3187(2)(c), FLA. STAT. (2015). 30. The City's forcing Marko to resign, thus, violated Marko's rights under the Whistle-blower's Act, § 112.3187, FLA. STAT. (2015), and has directly, naturally and foreseeably caused Marko to lose wages and Demand for Jury Plaintiff, Thomas Marko, demands trial by jury on all issues so triable. Respectfully submitted, WILLIAM R. AMLONG Florida Bar No. 470228 WRArniona @TheAmiongFirm.com KAREN COOLMAN AMLONG Florid Bar No. 275565 KAmionc TheArnIangFirm.corn JACLYN S. CLARK Florida Bar No. 117652 JClarkr TheAn ongF rm.com AMLONG & AMLONG, P.A. 500 Northeast Fourth Street Fort Lauderdale, Florida 33301-1154 (954) 462-1983 Attorneys for the Plaintiff, Thomas Marko