HomeMy Public PortalAbout19-9614 Payment to Dennis Horn and German Bosques Sponsored by: City Manager
RESOLUTION NO. 19-9614
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OPA-LOCKA, FLORIDA, AUTHORIZING THE CITY MANAGER TO
PAY DENNIS HORN AND GERMAN BOSQUE PURSUANT TO
BINDING ARBITRATION ORDERS; PROVIDING FOR
INCORPORATION OF RECITALS; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Dennis Horn and German Bosque filed grievances, in accordance with the
Collective Bargaining Agreement, against the City of Opa-locka that were resolved by binding
arbitration orders; and
WHEREAS, Dennis Horn and German Bosque have not received payment pursuant to
the orders; and
WHEREAS, the City Commission finds that it is in the best interest of the City to make
payments to Dennis Horn and German Bosque.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF OPA LOCKA, FLORIDA:
Section 1. RECITALS ADOPTED.
The recitals to the preamble herein are incorporated by reference.
Section 2. AUTHORIZATION
The City Commission of the City of Opa-locka hereby authorizes the City Manager to
pay Dennis Horn and German Bosque pursuant to binding arbitration orders.
SECTION 3. SCRIVENER'S ERRORS.
Sections of this Resolution may be renumbered or re-lettered and corrections of
typographical errors which do not affect the intent may be authorized by the City
Manager, or the City Manager's designee, without need of public hearing, by filing a
corrected copy of same with the City Clerk.
Section 4. EFFECTIVE DATE.
This Resolution shall take effect immediately upon adoption and is subject to the
approval of the Governor or his designee.
PASSED AND ADOPTED this 27th day of February, 2019.
Resolution No. 19-9614
7*
Mayor Matthew A. Pigatt
Attest to: Approved as to form and legal sufficiency:
I
Jo. . Flores THE BROWN LAW GROUP, LLC
City lerk City Attorney
Moved by: COMMISSIONER KELLEY
Seconded by: COMMISSIONER BASS
Commissioner Vote: 5-0
Commissioner Burke: YES
Commissioner Kelley: YES
Commissioner Bass: YES
Vice-Mayor Davis: YES
Mayor Pigatt: YES
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AMERICAN ARBITRATION ASSOCIATION
In the Matter of Arbitration )
)
between )
)
CITY OF OPA LOCKA )
)
)
and ) Case No. 01-18-0000-3379
(German Bosque Back Pay grievance)
DADE COUNTY PBA and )
GERMAN BOSQUE, )
Before: Robert B. Hoffivan, Arbitrator
Appearances:
For the City: V 1 sq
For the Union: Andrew M. Axelrad, General Counsel
Place of Hearing: Opa Laka, Florida
Date of Hearing: September 25, 2018
Post-Hearing Briefs and Reply Briefs Received by: October 31, 2018.
Decided: November 16, 2018
DECISION AND AWARD
I. Introduction
In November 2017, German Bosque ("the grievant"), an officer with the City of Opa
Locka Police Department ("the City" or ``Department"), filed a "personal grievance" with the
assistance of his bargaining agent, Dade County PBA ("the Union") seeking reinstatement and
back pay. As seen below, the grievant has now been reinstated.
The issue remaining is the extent of back pay owed by the City to the grievant. The City
acknowledges it owes back pay but disputes the time frame. It "does not dispute that Sergeant
Bosque is owed payment for lost wages from the dismissal of his criminal case on May 1, 2017.
The City, however, disputes the PBA's claim that any award determination should be from April
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19, 2012 [when placed on unpaid leave] until September 25, 2018 [when reinstated by the
arbitrator]. Employer's Closing Brief at p. 2. The "Fact" section below sets forth the significance
of these dates.
II. Facts
The grievant was terminated in October 2012 after being placed on unpaid leave on April
19, 2012 pursuant to Article 14.3 of the CBA, as he was under criminal investigation by the
Department's Internal Affairs. This contractual provision provides, inter alia:
Section 3. Employees relieved of duty for alleged violations of the law and/or departmental
rules will remain on full salary and allowances until such time as charges are determined to be
sustained by the Chief of Police. Upon indictment or the filing of an Information, the
Employee may, in the sole discretion of the City, be suspended without pay pending final
action by a Court of competent jurisdiction.
The grievant filed a termination grievance that led to an arbitration in May 2013. One
month later, on June 11, 2013, the Miami-Dade State Attorney's Office charged the grievant with
three crimes. On October 22, 2013 Arbitrator Jeanne Charles Wood sustained his termination
grievance and ordered reinstatement and back pay. The grievant received back pay but remained
on unpaid leave as the criminal indictment remained outstanding. On June 19 and 30, 2014, the
grievant was found guilty of two of the crimes and acquitted of one charge. The grievant appealed
the convictions.
On November 5, 2014 an Administrative Complaint filed by the Florida Department of
Law Enforcement. notified the grievant it would seek to revoke the grievant's certification issued
in 1993 by the Florida Criminal Justice Standards and Training Commission. On March 3, 2015,
the Commission notified the grievant of a hearing to revoke his certification; it was ultimately
revoked from what appear to be from the records in evidence "disciplinary proceedings" in May
2015 based on the criminal convictions.
2
On September 26, 2016 the Third District Court of Appeal reversed the grievant's
conviction and affirmed the judgment of acquittal on a second charge. On October 30, 2016 this
court vacated the second criminal conviction. Then on May 1, 2017 the third criminal charge was
nolle prossed by the State of Florida. On July 10, 2017 the Union filed a motion to have the
Commission set aside its order revoking the grievant's certification.
The grievant was not reinstated after the above arbitrator's award on October 23, 2013, or
after his criminal charges were dismissed and nolle prossed by May 1, 2017. After hearing
argument regarding reinstatement from counsel at the current arbitration hearing on September 25,
2018, this arbitrator ruled from the bench and so ordered the City to immediately reinstate the
grievant.'
II. Positions
A. The Union
The parties agreed to limit the subject matter of this closing brief to whether back pay is
owed from the date of his initial arrest on June 7, 2013,until May 1, 2017,when he was ultimately
cleared of criminal wrongdoing. The City has already agreed that Bosque was entitled to back pay
from May 1, 2017, to his reinstatement, as ordered by Arbitrator Hoffman's prior bench order
reduced to writing in an email to the parties.
The grievant contends he should be entitled to further back pay for the very simple reason
that his arrest and ultimate failed prosecution would not have occurred but for his employment
with the City. The arrest originated from his actions taken as a Police Sergeant with the City.
The parties stipulated that the arbitrator prepare a signed Order for the Florida Department of Law Enforcement
("FDLE"). The arbitrator did so and it remains to be considered by FDLE. The Order requires the grievant to
successfully complete a certification,a state Examination,complete mandatory training cycles he did not complete as
a result of his suspension and that he had no break in service from June 7,2013 to his reinstatement in 2018.
3
Therefore, once cleared of wrongdoing, he should not have any loss associated with the criminal
prosecution.
While no municipal ordinance exists in the City specifically providing for a make-whole
remedy in these situations, as some other governmental agencies do, it does not mean that the
grievant is not entitled to further back pay. It is similarly not precluded by the CBA or municipal
ordinance. It is therefore up to the Arbitrator to determine, but under the circumstances, Bosque
should not have a loss of approximately four years of pay due to actions that would not have
otherwise occurred had he not been employed by the City.
Persuasive arguments can be gleaned through the Florida Statutes which specifically
provide for back pay for public officers suspended without pay by the Governor (the grievant is
not a state officer and was therefore not suspended by the Governor), §111.05 Fla. Stat. (2018)
and in the immediate following section of the statutes, §111.065 Fla Stat. (2018), entitled '`Law
enforcement or correctional officers, legal action against; employer payment of costs and
attorney's fees or provision of attorney." (emphasis added), which provides the mechanism and
procedure for the reimbursement of attorney's fees and costs after prevailing in a criminal or civil
proceeding arising out of the scope of employment, even for municipal officers, like the grievant.
While in this case, attorney's fees for the criminal prosecution are not at issue, the State of
Florida's enactment of the above-cited statutes lends credibility to the argument that as a public
policy position, it is not the public employee who should suffer for allegations made against them
during the course and scope of their employment.
The City will surely argue that the amount of back pay that they would be required to pay
under the Grievant's argument would be burdensome to a city in financial emergency, and that the
City should not be liable for the extended time the criminal prosecution took due to an original
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conviction which was overturned on appeal. While those arguments may also be persuasive, they
do not negate the fact that the criminal prosecution only occurred due to Bosque"s employment,
and that the criminal justice system is set up in the way that it was, with an appellate process, to
protect those wrongly accused and convicted. The length of time it took to run its course was also
not the fault of Bosque. Exercising those rights should not preclude an equitable resolution by the
arbitrator.
The Employer correctly sets forth in their Closing Brief that the applicable provision of the
CBA that "[u]pon indictment or the filing of an information, the Employee may, in the sole
discretion of the City, be suspended without pay pending final action by a Court of competent
jurisdiction- properly allowed the City to suspend Bosque without pay during the pendency of his
criminal prosecution. That is precisely why there was no challenge to his placement in such status,
and also why the day he was ultimately cleared of wrongdoing on May 1, 2017, the demand to
place him back in full pay status was submitted to the City. It is also consistent with the City's
agreement that he is due back pay, at a minimum, from May 1, 2017.
What the provision is silent on is whether Bosque is entitled to backpay from the date of
his original placement in a relief of duty without pay status. Conversely, the provision is equally
silent as to whether the City is entitled to not issue any back pay from the period Bosque was
placed in a relief of duty status.
The operative word in the provision is may. The City certainly did not have to relieve
Bosque without pay, but it had the right to if it wanted. In this case, the City wanted to relieve
Bosque without pay. The City may have felt differently about another employee and kept that
employee on full pay. The idea that the City could unilaterally treat employees differently in this
regard should not be construed to suggest that it would be improper for an Arbitrator to
5
subsequently grant an award of back pay.To the contrary,without language specifically precluding
the Arbitrator from awarding back pay (or affirmatively requiring its award) simply allows the
Arbitrator jurisdiction to make the decision.
B. The City
The City does not dispute that the grievant is owed payment for lost wages from the
dismissal of the criminal case on May 1, 2017 to present. The City. however, disputes the PBA's
claim that any award determination should be from April 19, 2012 until September 25, 2018. He
was suspended without pay in accordance with the provisions of the CBA. There is no contractual,
common law or statutory basis for back pay from the time of suspension until time of
reinstatement. The operative time is from the time criminal charges were dismissed until the date
of reinstatement or from May 1, 2017 until September 25, 2018, per Article 14, Section 3.
The City thus exercised its rights under the CBA to suspend the Grievant while the criminal
charges where pending. The CBA was ratified by the parties and remains at status quo. The issue
of the applicability of Article 14 should be interpreted as constructed by the parties in drafting the
CBA. In this instance, the clear intent of the parties was to allow the City to exercise its right to
suspend an officer without pay upon an indictment or the filing of information. Thus, the sole
question for the Arbitrator is whether or not the City exceeded its authority in suspending the
grievant. The City contends that acted well within its authority and the Grievant's demand should
be denied.
Furthermore, the grievant's Reply Brief bolsters the City's position through his
acknowledgement in stating: The operative word in the provision is may. The City certainly did
not have to relieve Bosque without pay, but it had the right to if it wanted. In this case, the City
wanted to relieve Bosque without pay.- (Emphasis added) The fact the that Grievant now takes
6
issue with the City's rights under the CBA is without merit and insufficient grounds to issue an
award of back pay. By the Grievant's own argument, the City acted within its authority. The
language is clear. Moreover, the Grievant's unsupported assertion that the City could somehow
abuse its rights under the CBA is purely speculative and should be disregarded.
III. Decision
The Union's burden is to establish that the grievant is entitled to back pay for a period
longer than from when his criminal charges were dismissed until his reinstatement, as claimed by
the City. The Union maintains that back pay should go as far back as when the City suspended the
grievant at the time of its criminal investigation took place. The issue comes down to whether
Article 14, Section 3 controls, or whether in the Union's view that inasmuch as the City had
discretion to invoke 14.3 and suspend without pay, that an equitable consideration would be to
order back pay, as but for the grievant's employment he would not have been arrested, convicted
and then exonerated.
Most important is to see what Article 14.3 provides about suspending an employee
involved with violations of the law. There are two parts to this section 3. The first relates to
employees receiving pay when "relieved of duty for alleged violations of the law and/or
departmental rules. . . . `` The second part concerns suspension without pay when an employee is
criminally charged. Unless the grievant received some back pay from his first arbitration award,
which is unclear as to receipt and time period, this grievant's suspension has been without pay
from April 19, 2012 until May 1, 2017, when the Court essentially dismissed the three charges
against him. The question then is, when was the grievant criminally charged? Once determined it
will answer whether starting a suspension without back pay on April 19, 2012 was proper under
7
14.3 that requires an "indictment or then filing of an Information" to allow for the City to either
suspend without pay or not do so.
The parties stipulated that the grievant was arrested on June 13, 2013. The record contains
no documentation of a date of an indictment, Information or charge, although the latter can be
reliably assumed from an arrest. In any event it appears that a period of time elapsed between the
grievant's suspension and the date when 14.3 would kick in for a suspension without pay. It is this
period that the grievant is clearly entitled to back pay. 14.3 allows for a suspension,without calling
it that, in the first sentence, where it is mandatory that employees "relieved of duty for alleged
violations of the law . . . will remain on full salary until such time as charges are determined to be
sustained by the Chief of Police."2
The record does not contain any evidence about such determination. Nonetheless, the City
does not rely on this part of 14.3, as it denied pay to the grievant from the IA investigation through
the May 1, 2017 dismissals. The arbitrator thus rules that, unless already paid on the authority of
the first Arbitration Award, the grievant is entitled to back pay for the period not covered by the
suspension language in 14.3, which, as noted above, appears to be Apri119, 2012 to June 13, 2013
when he was arrested,presumably at the time when criminal charges were brought against him.
The arbitrator shall retain jurisdiction should there be a dispute over the date when the grievant
was criminally charged and/or the back pay covered period as awarded by the first arbitrator.3
As noted earlier,it remains unclear whether the back pay awarded to the grievant in his first arbitration covered
this period.For that reason the arbitrator,exercising the most caution,makes this award here for this pre-criminal
charges period. Obviously if the grievant has already been so paid,he shall not be paid twice.
3 The record is uncertain about these dates and whether the grievant actually received pay for that period,especially
in light of the grievant's post-hearing brief posing the back pay issue as starting on June 7,2013 and the City's brief
that the Union seeks a start date of April 12, 2012 for back pay. There were stipulations about these dates but they
appear to be in dispute from these post-hearing briefs.
8
As to the remaining period from June 13, 2013 to May 1, 2017, was it proper for the City
to suspend the grievant without pay for this period of time? It is undisputed that the 14.3 period
ended on May 1, 2017 with the court's actions disposing of the criminal charges. And the City
does not dispute that it is obligated to pay the grievant back pay starting on this date until his
reinstatement on or about September 25,2018. As seen,the Union contends that it would be unfair
to deny the grievant back pay for the period before May 1, 2017, as the grievant would not have
been in this position but for his employment by the City.
The arbitrator, however, cannot ignore what the parties contractually agreed to when it
comes to suspensions based on criminal charges. Article 14.3 is clear on its face as to what the
parties intended when faced with an employee charged criminally. In Paul Mueller Co. and Sheet
Metal Workers, 2016 WL 8456821(Hoffman) this arbitrator quoted the well-established plain
meaning rule:
If the words are plain and clear, conveying a distinct idea, there is no occasion to resort to
interpretation, and their meaning is to be derived entirely from the nature of the language
used." Elkouri&Elkouri,How Arbitration Works, 6th Ed. at 434.
Also, in Miami-Dade County and TWU, 129 LA 1327 (Hoffman. 2011), this arbitrator quoted
from this widely relied-upon decision: An arbitrator's function is not to rewrite the parties.
contract. His function is limited to finding out what the parties intended under a particular clause.
The intent of the parties is to be found in the words which they,themselves, employed to express
their intent." Phelps Dodge Copper Products Corp., 16 LA 229(Justin, 1951).
Article 14.3 distinctly sets forth the actions that form the period when the suspension
without pay starts and ends. And it allows the City the discretion whether to invoke this provision
or not. The City chose to invoke it. Clearly the intent of the parties is to allow the City this latitude
in deciding whether or not to suspend an employee without pay. Significantly, there are no
9
standards for doing so. Instead, the parties gave the City the right on its own to make that decision
once criminal charges are formally made.
The Union does not disagree that that the City properly exercised its discretion per 14.3 to
suspend. As noted, it raises an equitable argument that because this is a discretionary decision, it
provides the arbitrator with enough equitable latitude to consider back pay when an employee is
exonerated and otherwise would have been employed with pay.
The arbitrator agrees that an equitable remedy would allow the grievant full reinstatement
with pay that that he would have otherwise earned. It's a remedy that makes him whole. If he did
no wrong, he should not be so punished without pay. There is much to be said for this type of
remedy. The problem is that the parties chose to negotiate over these types of suspensions and pay.
And when they did so they wrote words that are clear as to what happens when an employee is
criminally charged, i.e., "suspended without pay pending final action by a Court of competent
jurisdiction."
As such, to grant back pay for this complete period that the grievant was properly
suspended under 14.3, flies in the face of distinct words that call for the suspension without pay.
For the arbitrator to undue these words and allow back pay, would require the parties to have said
as much in 14.3 if an employee is exonerated.`' To thus order back pay would in effect nullify the
parties' intent to suspend without pay during this period before final court action. Thus, it must be
concluded that irrespective of the criminal outcome by the court,and absent any language allowing
for recovery of back pay should there be exoneration,the parties considered this suspension period
And when such exoneration is sufficient for reimbursement of back pay, the evidence shows that there is either a
statute or an ordinance (or even contract language) that allows for it. The Union cited a statute allowing for State
public offers to receive such reimbursement. That it is lacking here, either by City Ordinance or the CBA, strongly
suggests that the parties did not either agree on it or intend to have such a provision applicable for exonerated officers.
The arbitrator asked Union counsel at the hearing if he found any arbitration decisions that awarded such
reimbursement where there was no statute,ordinance or contract language supporting it.He answered"no."
10
without pay, when an employee cannot fully perform his sworn duties because he faces criminal
charges, as reasonable and proper. As noted, the arbitrator's function is not to re-write the CBA.
That's what would happen if the Award called for back pay for this entire period.
AWARD
Based on the above and the entire record, the following is ordered:
1. The grievant shall be paid back pay by the City from the start of his suspension on April
19, 2012 until criminal charges were brought against him on June 7, 2013, no later than 14 days
after the date of this decision (also see footnotes 2 and 3);
2.As seen above, if the parties disagree as to the June 7,2013 date and/or have information
not found in this record regarding any back pay paid during this period, they shall come to such
agreement, deduct it from#1 above and so inform the arbitrator;
3. The arbitrator otherwise retains jurisdiction regarding any dispute over the
administration of#'s 1, and 2 above for a period of 90 days. .
4. The grievant,per Article 14.3, is not entitled to back pay for the period of his suspension
starting on June 7, 2013 (or a date per #2 above) and ending May 17, 2017, when the Court
disposed of the three criminal charges against him.
5. The City shall forthwith, no later than 14 days after the date of this decision, pay back
pay to the grievant for the period starting on May 17, 2017 to his actual reinstatement, in or about
September 2018.
Arbitrator
11
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY,FLORIDA
CITY OF OPA-LOCKA,FLORIDA,
A Florida municipal corporation,
Petitioner,
CASE NO. 2018-008642-C _-tI
v. CIVIL DIV?■1,
SRS DISPOSITION
DADE COUNTY POLICE BENEVOLENT THM OURT DISMISSES THIS CASE AGAINST
OggERS AS TO ALL PAM=E ORDER
OR PREV1011S00 l�ER St}.IHIS CASE ISLCLOSED
ASSOCIATION,and DENNIS HORN,
Respondents. AS TO ALL PARTIES. `r
Judge's Ini : . •
ORDER DENYING PETITIONER'S MOTION TO VACAT ' c ITRATION AWARD,
GRANTING RESPONDENTS' MOTION TO CONFIRM ARBITRATION AWARD AND
ENTRY OF FINAL JUDGMENT
THIS CAUSE came before the Court on December 20, 2018, on Petitioner's Motion to
Vacate or Modify Arbitration Award and Respondent's Motion to Confirm Arbitration Award.
Having reviewed the motion, the response thereto, and having heard argument of counsel, and
being otherwise fully advised in the premises, the Court ORDERS AND ADJUDGES as
follows:
1. The Petitioner's Motion to Vacate or Modify is DENIED for the reasons stated on the
record in the recorded transcript of the same date.
2. Respondent's Motion to Confirm the Arbitration Award is GRANTED.
3. Pursuant to Florida Statute 682.12 and 682.13(4),the Award of Arbitrator Jeanne Charles
Wood issued December 18, 2017, regarding Opa-Locka Police Officer Dennis Horn is
CONFIRMED.
4. Pursuant to Florida Statute 682.15(1), JUDGEMENT is entered against the CITY in
accordance with said Arbitration Award, in the amount of$121,581.24, in favor of the
Respondent, Dennis Horn.
5. The Court reserves jurisdiction to award attorney's fees and costs to Respondent pursuant
to Florida Statute 682.15(3).
DONE AND ORDERED in Miami-Dade County,Florida,this 21st •.y • II ecem.- 018.
i
.'r'rzo 74111
Circuit Court ,udge
Cc: Counsel of record via email