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HomeMy Public PortalAbout19-9631 Authorizing the payment for Mayor Pigatt Legal Fees Sponsored by: Mayor Pigatt RESOLUTION NO. 19-9631 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, AUTHORIZING THE PAYMENT OF MAYOR MATTHEW PIGATT'S LEGAL FEES AND THE HIRING OF DOUTHIT LAW, LLC., TO DEFEND AND PROVIDE LEGAL REPRESENTATION IN CONNECTION WITH A WHISTLEBLOWER CLAIM AND ETHICS COMPLAINT RESULTING FROM THE PERFORMANCE OF HIS OFFICIAL MAYORAL DUTIES WHILE SERVING A PUBLIC PURPOSE; PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Section 111.07, Florida Statutes authorizes municipalities to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function; and WHEREAS, Mayor Mathew Pigatt, as a result of the performance of his official duties while serving a public purpose, has to defend a Whistleblower Claim and Ethics Complaint made by City Clerk, Joanna Flores (Exhibit A); and WHEREAS, the Florida Supreme Court has enunciated a common law doctrine, independent of statute, ordinance, or charter, affording public officials the right to legal representation at taxpayer expense in defending themselves against litigation arising out of their public duties and while serving a public purpose. See Thornber v. City of Ft. Walton Beach, 568 So.2d 914, 917 (Fla.1990); and WHEREAS, the City Commission finds that it is in the best interest of the City of Opa-locka to pay for Mayor Pigatt's legal representation. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA: Section 1. The recitals to the preamble herein are incorporated by reference. Section 2. The City Commission hereby authorizes the payment of Mayor Matthew Pigatt's legal fees and the hiring of Douthit Law, LLC whose terms of representation are set forth in the retainer attached as Exhibit B. The fees in this matter shall be capped at $5,000.00. In the event the fees exceed the aforementioned cap, City Commission approval is required. Resolution No. 19-9631 Section 3. This Resolution shall take effect immediately upon adoption and is subject to the approval of the Governor or the Governor's Designee. PASSED AND ADOPTED this 13th day of March, 2019. Matthew Pigatt Mayor Attest to: Approved as to form and legal sufficiency: 1 H Q/431\- Js. a Flores Vincent T. Brown, Esq. CI y Clerk The Brown Law Group, LLC City Attorney Moved by: COMMISSIONER BURKE Seconded by: COMMISSIONER KELLEY Commissioner Vote: 4-1 Commissioner Kelley: YES Commissioner Burke: YES Commissioner Bass: NO Vice Mayor Davis: YES Mayor Pigatt: YES Michael A. Pizzi Jr., Esq. 6625 Miami Lakes Drive, Suite 313 Miami Lakes, Florida 33014 PH: (305) 777-3800 E-Mail: mpizzi@pizzilaw.com March 4th 2019 Honorable Melinda Miguel Florida Inspector General Members Financial Oversight Board Mr. Jose Arrojo Executive Director Miami Dade Commission on Ethics Mayor and City Commission City of Opa Locka RE: JOANNA FLORES REQUEST FOR WHISTLEBLOWER PROTECTION; AND PROTECTION FROM RETALIATION AND RELATED RELIEF Dear Sirs: This is to inform you that this firm represents City of Opa Locka City Clerk Joanna Flores, who is filing this Complaint against Mayor Matthew Pigatt and seeking protection from retaliation as a result of her refusal to condone or participate in violations of the Opa Locka City Charter as well as Federal and State whistleblower and anti-discrimination statutes. Upon information and belief, Mayor Pigatt is seeking to remove Joanna Flores as City Clerk because she has refused to participate in illegal Orders of Mayor Pigatt to act as Strong Mayor in violation of the Opa Locka City Charter and for refusing to cooperate in his abuse of power in violation of the Miami-Dade Ethics Code and other statutes. This attempted removal is also in retaliation for Ms. Flores' filing of a prior EEOC Complaint and Lawsuit which are public record. Ms. Flores has been an exemplary City employee since 1995 and the City Clerk since 2012. Ms. Flores has an outstanding record and is highly regarded for her exceptional performance and competence. The Financial Oversight has consistently praised the professionalism and quality work of the Clerk's Office. Despite her outstanding record, Mayor Mathew Pigatt has attempted and is currently attempting to have her removed, and has sponsored an Agenda Item to advertise for her replacement. This is being done in retaliation for Ms. Flores showing integrity and standing up to bullying and attempts to violate the City Charter and Ethics Code. Specifically, Mayor Pigatt has done the following, among other violations: 1. Ordered Ms. Flores to allow Mayor Pigatt to select the new Deputy City Clerk(AKA Executive Assistant),including an Order to advise him in advance of any selection and to obtain his personal approval in violation of the City Charter and to the exclusion of the City Commission. 2. Disseminated and established the qualifications for the New Deputy City Clerk position and Ordered the advertisement of the position without even advising the City Clerk, who is the only official under the City Charter authorized to engage is such activities; 3. Ordered Ms. Flores to attend meetings off-site at his work location when he was a Commissioner; 4. Through the City Attorney, attempted to have her improperly disqualify his opponents in the Mayor's race from the ballot; 5. In general, attempted to act as a Strong Mayor to the exclusion of the rest of the City Commission and in violation of the City Charter. 6. Attempted to influence the selection of the Deputy City Clerk position to result in the selection of personal acquaintances and friends of his. Mayor Pigatt's advertisement for a new City Clerk was done within 72 hours of his visiting the Clerk's Office and being informed that contrary to his direction, Ms. Flores did not permit him to select the new Deputy Clerk, did not select a friend of his, and refused to permit the new Deputy Clerk to serve as an assistant to the mayor, to the exclusion of the rest of the City Commission. On behalf of City Clerk Joanna Flores, it is requested that the Florida Inspector General, the Financial Oversight Board, the Miami Dade Commission of Ethics and the City Commission protect her from retaliation and investigate this matter. There is a direct correlation between the Mayor's attempt to advertise for a new City Clerk and Ms. Flores' protected activities. Very truly yours, s/Michael A. Pizzi, Jr. Michael A. Pizzi Jr., Esq. RETAINER-- GENERAL TERMS AND CONDITIONS 1. Nature of Legal Services. You have engaged Douthit Law, LLC to represent you to represent you in defense of that certain Complaint filed against you by the Clerk of the City of Opa Locka. You have provided me with a copy of the Formal Letter from Michael Pizzi detailing the allegations against you. We will perform all acts necessary and generally associated with a matter of this type and ensure that your rights are preserved. This will include,but is not limited to responding to the letter,representation before any ethics boards or commissions, defense of any lawsuits and presentations before any governmental authority. 2. Retainer/Fees for Services. This firm will bill at the hourly rate of$450.00. Our time will be calculated on a monthly basis and we bill in increments of 1/10th of an hour. Any travel time will be calculated door to door and will be billed at the hourly rate. The amounts due shall be your responsibility notwithstanding any obligation or commitment to pay by any third party or entity. 3. Costs. You will be responsible for the payment of all costs associated with this matter, including filing fees, copies, depositions, service of process fees, computer research, mailing, and court reporter or other costs, etc. Costs, to the extent practicable are payable in advance. However, in the absence of a cost payment in advance, the Firm will, at its discretion, incur the liability of the cost and invoice you for the actual amount of the costs. All costs incurred shall be billed to you at the actual amount of the cost. Backup documentation for the cost amount to the extent it is available, shall be retained by the Firm for inspection by you, upon request. The Firm retains the right to require payment for costs in advance of incurring the expense. 4. Cost Deposit. No cost deposit is due at this time. 5. Statement of Services/Reports. A monthly statement of the work performed on your behalf will be submitted to you on or about the first of the month. Any work beyond the scope of what is contemplated in this agreement will be the subject of a further agreement and retainer. 6. Exempted Services. Legal services for matters outside of what is set forth in paragraph 1, above, are not covered under the Retainer described in paragraph 1 above. 7. Responsible Party. Marc Anthony Douthit, Esq., shall be the Firm's primary contact with you and inquiries, unless otherwise noted, should be directed to him. 8. Non-Payment of Fees and Costs. The failure to pay the fees and costs which arise out of this Retention Agreement according to the terms of this Retainer Agreement will constitute an event of default by you. In the event of default, www.douthitlaw.com you consent to this firm's immediate cessation of all legal services on your behalf and to the Firm's withdrawal as your counsel. Payments are considered past due on the 16th day after the date of any invoice or payment due date. Past due invoices shall incur interest at the rate of 1.5%per month. All documents, papers, pleadings or other items shall remain the property of Douthit Law, LLC until such time as all payments due under this agreement are paid in full. The execution of this Agreement constitutes your consent to the withdrawal by the firm from any litigation which the firm has entered an appearance as counsel of record in the event of non-payment of the fees or costs due under this Agreement. Further, the Firm reserves the right to withdraw from representation if you have misrepresented or omitted material facts related to our representation. If the parties disagree on how to proceed in a particular matter, either party may terminate this agreement upon written notice. Upon termination all outstanding fees must be paid in full. 9. Florida Law. This agreement is governed by the laws of the State of Florida. Venue is proper, in the event of any disagreement between the parties, in Miami-Dade County, Florida. Further, the members of the firm are bound by and must follow the Rules Governing the Florida Bar or other appropriate state bar association. 10. Legal Conflicts. The Firm has not identified any legal conflict with any other party to this litigation. 11. Commencement of Representation. Please review this Retention Agreement carefully, if you have any questions, do not hesitate to contact the undersigned. If this Retention Agreement is acceptable, please acknowledge that it has been reviewed and you desire to retain this Firm on the basis of the terms of this Retention Agreement. I look forward to working with you. Please make any checks payable to Douthit Law, LLC. Sincerely, /s/Marc Anthony Douthit Marc Anthony Douthit,Esq. I have read the foregoing Retainer Agreement and agree to terms and conditions contained therein. Matthew Pigatt www.douthitlaw.com l%Lock City of Opa-Locka -/ Office of the C ity ttorne 305) 688-4611 '9_pi% 780 Fisherman Street,4th Floor, Opa-Locka,Florida 33054 Vincent T.Brown City Attorney MEMORANDUM TO: Mayor Mathew Pigatt City Commission FROM: Vincent T. Brown, City Attorney - -------- DATE: March 13, 2019 RE: Legal Opinion on the City Commission's Role in Handling the Whistle Blower and Ethics Complaints of Joanna Flores You have asked how the City Commission should proceed with the March 4, 2019 request for Whistle Blower protection filed by the City Clerk. Pursuant to Chapter 23 of the City Code of Ordinances - Employee Protection Whistle Blower, the City Commission doesn't have a direct role in the administration.However,under section 23-7(b)—Remedies, the City Manager can appoint a hearing examiner to investigate and hear the complaint of alleged victim;or under section 23-7(d)-Remedies,the Miami-Dade Commission on Ethics may conduct an investigation into the complaint. More specifically: Sec. 23-3. -Actions prohibited. (a) The city shall not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pursuant to the provisions of this chapter.(b)The city shall not take any adverse action that affects the rights or interests of an employee in retaliation for the employee's disclosure of information under this chapter.(c)The provisions of this chapter shall not be applicable when an employee discloses information known by the employee to be false. Moreover, under Section 23-7(b)provides that: Any employee protected by this chapter who does not have the right to file an appeal under the city's human resources policy or a controlling collective bargaining agreement, may file a written complaint within sixty(60)days after the action prohibited by this chapter with the manager. The manager shall refer the complaint to a panel of impartial persons from whom a hearing examiner shall be selected. The panel shall be comprised of all persons available to serve as a hearing examiner under the city's human resources policy or a controlling collective bargaining agreement. Such hearing examiners may be paid a fee for their services,but shall not be deemed city officials or employees within the purview of chapter 2, article I.5 sections 2-9 through 2-13 or otherwise. The hearing examiner shall conduct a hearing after notice to the complainant and the city department, political subdivision or special district involved.The hearing shall be conducted in accordance with City Hall • 780 Fisherman Street,4th Floor, Opa-locka, Florida 33054 • (305) 688-4611 AN EQUAL OPPORTUNITY EMPLOYER AND DOES NOT DISCRIMINATE ON THE BASIS OF HANDICAP the procedures, if applicable, to hearings under the city's human resources policy or a controlling collective bargaining agreement,except as may be provided herein.Any interested party may procure the attendance of witnesses and the production of records at such hearing in the manner provided by chapter 2,article XI subdivision 3,sections 2-570.46 and 2-570.47.All hearings requested pursuant to this paragraph shall be commenced insofar as is practicable within sixty(60) days of the manager's receipt of the complaint,except that the city manager shall have the authority to extend such time for reasonable cause.(c)The hearing examiner shall transmit his fmdings of facts,conclusions of law and any recommendations together with a transcript of all evidence taken before him and all exhibits received by him to the manager or manager's designee for a final decision.The manager or manager's designee may sustain,reverse or modify the adverse personnel action.In any case in which the hearing examiner finds that the employee filed a frivolous complaint in bad faith,the hearing examiner may recommend and the manager or manager's designee may direct the employee to pay the costs of the hearing, including the employer's attorney's fees. Due to the fact that the attorney representing the complaining victim currently represents the City Manager, Plaintiffs in the class action water law suits and several other individuals,it is therefore urged that the City Commission request that Miami-Dade Commission on Ethics conduct an investigation into this matter. Because there possible conflicts within the City administration,the best course of action would be to invoke Section 23-7(d)(2),which allows the Miami-Dade Commission on Ethics and Public Trust to investigate complaints. That section provides as follows: Within ten (10) working days after receiving a complaint under this chapter, the Miami-Dade Commission on Ethics and Public Trust shall acknowledge receipt of the complaint and provide copies of the complaint to the employee accused of retaliation and the department director of the department in which such employee is employed.(3)Upon the filing of a complaint with the Miami- Dade Commission on Ethics and Public Trust under this chapter,the Miami-Dade Commission on Ethics and Public Trust shall: a. Conduct a preliminary investigation, to the extent necessary, to determine whether there is probable cause to believe that a prohibited personnel action under this chapter,has occurred.b.Within ninety(90) days after receiving the complaint in compliance with subsection(d)(1)herein,provide the accused employee,the department director of the department in which the accused employee is employed and the complainant with a copy of a probable cause memorandum and conduct a probable cause hearing before the Miami-Dade Commission on Ethics and Public Trust which shall make a determination as to whether there is probable cause to believe retaliation prohibited by this chapter has occurred. The probable cause memorandum and the fmal written decision and findings of the administrative or contractual proceedings referenced in subsection(d)(1)herein shall be presumed admissible in any Miami-Dade Commission on Ethics and Public Trust hearing conducted under this chapter.c.Based on its probable cause determination, recommend to the manager an appropriate course of action.In response to such a recommendation, the manager shall thereafter be required to make a written determination of the appropriate remedial action,if any,to be taken in accordance with section 23-8. In light of the nature of the allegations and potential consequences, the best course of action would be to engage with the Miami-Dade Commission on Ethics and Public Trust. Lastly, in light of nature of the allegations and potential consequences,it strongly urged that you seek outside counsel. Be advised that due to a potential conflict,this City Attorney can't be engaged in this matter. END OF MEMORANDUM 2