Special Master Complaint Against Joe Kaplan_ ~~~~i
CITY CLERK/SPECIAL MASTER MEMORANDUM
TO: Mayor Matti.: H. Bower and Members of the Commission
FROM: Mario P. Goderich, Chief Special Master ~~ "'~ ~
~~~~r
~ATE: November 5, 2009 ~
SUB~ECT: Complaint Filed Against Special Master Joe Kaplan
Mayor Bower and Members of the Commission,
On October 6, 2009, a complaint filed by Ms. Kathaleen Smarsh was forwarded to me. Pursuant
to the Special Master Complaint process, a copy of said complaint was forwarded to Special
Master Joe Kaplan for review and response.
During the process of conducting the investigation, Special Master Joe Kaplan was requested to
provide a written response. Special Master Kaplan denied the allegations. Several people
involved in the hearing were also spoken with. Additionally, the transcript of the hearing was
reviewed.
The allegations made in the complaint are not supported in The Record, nor by statements that
we heard. Nevertheless, we have met with Special Master Kaplan and counseled him on the
necessity to be courteous and sensitive to citizens of the City that appear in front of him.
I am available to meet with Ms. Smarsh about this matter, if she so chooses.
C: Jorge M. Gonzalez, City Manager
Jose Smith, City Attorney
Joe Kaplan, Special Master
Kathaleen Smarsh, Complainant
We nre cornmir;ed to providing excellent public seroice and safety to all ~.vho live, work, and play in our vibraN, rropical, hisloric communiry.
Smith, Jose
From: kathaleensmarsh@aol.com
Sent: Tuesday, October 06, 2009 11:37 AM
To: Smith, Jose
Cc: Aguila, Raul
Subject: Special Master's hearing, October 1
Deai Mi. Smith, ~
I would like to infoim pou of the unjust Special Mastei's hea~ing that I attended on Octobei 15C. I've attended
seveial hea,Yiszgs in the past peai that ~veie heaid by speczal xnasteis othex than Judge I~~.plan and do not have any
coinplaints. Unfoitunately, Judge Ka.plan i-uns a cztcus of a cou~t~:ooin and displays blatant piefeiential tteat~nent
fox ceittin individuals and is completely inconsistent i~ his judgm.ents. I was appalled that fiues in the $~60,000
ra~ge, $90,000 xange, and inany othei Iaxge fines wexe Yeduced to a pittance os ieinoved all togethei for tllose that
lie is fond o£ I patiently waited 5 how:s fox rnp buildi.t~.g's case to be hea:td. I waited while Judge Ka.pla.n took
photos o£ an atto~-nep and hei babp. I waited wkile an attoi~n.ey, Michael Gongoia, inte~-upted the cow:t a.~d
jumped the queue because he's iun~iug fox office and has a funciYa.isei to atte~d. I watched how a fo~nei
cointnissione~: , Elaine Bloo:m, had sigxuficant iim~e to have hei case heatd whil.e the i nspectoi even went to his
office to look up somethit~g in the file foi hex~. She ieceived a positive outcome. I undeista~d that attoineps aie
heaid fitst, but they received pieferential ti:eatment under Judge Kaplan while the iesidents iepiesentu.lg theit o~arn
cases weie often tj:eated like 3~' class citizens, depending on the judge's piedilection fox pou.
I'in a boai:d inembei and uxut ownei of Paxk Ga.idens and have previously represented oui buildin.g and the judges
~veie ieasonable and iespectable. Judge Ka.plan mocked me that T was representing m.q buil.ding. He had no inteiest
iza. heaiing what I had to say oi even the city ixispectoi's com~.ents. Judge Kaplan had his inind inade up befoie I
even spol~e at the podium. I ttxed to state to Judge Kaplan that I was piesent ~.t tlze initigation hearing aftei tlze
iecoininendation fioin the judge at the Ap~12"d hearing. Theie's moie to the stoiy, but mp building is no~v going
to hi.~:e an attorney in oidei £oi ou~ case to be appealed and hea.id again. I volunteeied a significant pait of iny life
foi the past yeai and a half to inanage a laige construction project at mp builciin.g and Judge Kaplan l~ad the audacity
to teIl ~ne tliat I appalently haven't done enough wo~k. I was stunned and fu~ous. Judge Ka.plan did not ieduce iny
building's $6,900 fine and T left the chambeis dismaped. I think that Judge Ka.plan's cow:tlooin and judginents are
an emba~assxnent to Miaini Beach and even on the b~nk of co~i-upt.
My hope is that someone at the City of Miasni Beach Yecogruzes that Judge Ka.plan is not a just judge foi all the
citizens of Miami Beach and that he should be iep~tnanded. Judge KapJan makes citizens, Iike mpself, chagxitzed
~vi.tlz the special inaste~:'s heazing piocess. ~
Thanl~ you, ~
Katlialeen Smaa:slz
Parli Galdeils
1045 10`'' Stteet
Miazni Beach, rL 33139
Hoine nwnbei: 305.604.5829
October 12, 2009
To: Chief Special Master Goderich
Re: Complaint filed by Kathaleen Smarsh dated October 6, 2009
Ms. Smarsh's complaint amounts to no more than an angry attack by someone who lost
her case in a judicial proceeding, against the person who adjudicated that loss.
Unfortunately, her anger has caused her to embark on a thoughtless ride through spurious
claims of my being on the "brink of corrupt" and an"embarrassment to Miami Beach."
Her particular attack has created a dilemma for me. Qn the one hand, I feel that I should
not dispute these outlandish charges made outside of an appropriate forum for review of
the legal or factual nature of her case and the manner in which that case was heard. i
should not, I believe, explain my ruling in her case nor attempt to justify it. If she wishes
to contest the outcome of her claim, there are appropriate remedies of Rehearing and
Appeal she can follow.
4n the other hand, my conduct as it may have impacted her case is clearly subject to
review by you and any appellate body. You may, therefore, ask me what I may have done
which damonstrated bias or prejudice against her or denied her due process of law. And
to that question I can only respond that I believe that Ms. Smarsh received a fair hearing
and that my ruling denying her claim for Mitigation was legally sound and was reached
without bias or prejudice.
As for how I performed during th.e whole of the eight hours I was on duty, I do not
believe I need. to explain or argue the general nature of my work. Ms. 5marsh, attacking
me for my ~vork during these hours, made numerous and insulting broad charges of
misconduct. I cannot respond to unproven and non-specific charges of treating some
people like "third class citizens" and giving others "preferential treatment." But I will
respond to her specific charges:
First of all, as you know, a11 the Special Masters sit and hear a large number of cases
during the hours allotted to us on a Hearing day. I had 70 or so cases scheduled on
October 1, to be heard from 2 P.M. until the end of the day (which was approximately
1 Q:30 P.M.) Some of those cases were "no-shows" and some were re-scheduled. I believe
that I acted fairly and timely in a11 of these cases as I have duxing the approximate 3 years
of my service to the City as a Special Master. However, as to three specific charges of
misconduct Ms. Smaarsh made against me in her letter, here is my response:
1. I did spend a few seconds taking a picture of a lawyer who held her infant child in her
arms for some part of her representation of a client whose case was before me. That
lawyer was forced for personal reasons to hold her child at the lectern toward the end of
her work and the sight of her doing that, in my eyes, was extraordinary. Because I had
never seen a lawyer doing that, I asked her permission to snap a photo of her while she
was holding her child. It took no more than a minute to snap the three pictures, so how
Ms. Smarsh could have been offended by it is more a reflection af her sta.te of mind about
her own case than a fair appraisal of what I was actually doing. It appears that after she
heard my ruling in her case, she retrospectively criticized everything I did the whole of
the day and launched an attack aga.inst me because she was angry witli my ruling.
I do have prints of the 3 photos I#ook. If you want to see them please ask.
2. Attorney Michael Gongora did not "jump the queue" as she charges. Because he had
been waiting a long time, when it appeared to him that he could not remain in the Hearing
Room at the end of someone else's case because he had another appointment, he sought
to have his case postponed. When I told him that he was scheduled to be heard second,
the attorney who was before him volunteered to let hi.m go next. That exchange took 2 or
3 minutes and it ended with Mr. Gongora presenting his case in a pr+~per order of
business. Nobody, including Ms. Smarsh, suffered any delay in their case. It should also
be pointed out that I frequently accommodate citizens and their lawyers who wish to
adjust their appearance time. It is a simple matter of courtesy.
3. Elaine Bloom appeared before me as a wttness in a case and presented sigmificant
relevant testimony in that case. That case happened to take some time to complete, but it
was an appropriate balancing of time. I did that for Ms. Smarsh too. Her case and Ms.
Bloom's case was called by our Cierk in proper order and took an appropriate amount of
time. Ms. Smarsh's criticism in that matter appears to be another irrational example of
her anger.
That, I believe, responds to the specific charges Ms. Smarsh inade about me and the other
people she mentioned in her letter. If you would like anything else please let me know.
Respectfully,
EXHIBIT "A"
SPECIAL MASTER COMPLAINT PROCESS
1. Code of Conduct for Special Master
Judicial Duties in General
The judicial duties of a Special Master take precedence over all the Special
Master's other activities. The Special Master's judicial duties include all the
duties of the Special Master's office prescribed by law. In the performance of
these duties, the following standards apply.
Adjudicative Responsibilities
A Special Master shall hear and decide matters assigned to the Special Master.
A Special Master shall be faithful to the law and maintain professional
competence in it.
A Special Master shall not be swayed by partisan interests, public clamor or fear
of criticism.
A Special Master shall require order and decorum in proceedings before the
Special Master.
A Special Master shall be patient, dignified and courteous to litigants, property
owners, witnesses, lawyers and others with whom the Special Master deals in an
official capacity, and shall require similax conduct of lawyers and of staff, court
officials and others subject to the Special Master's direction and control.
Commentarv
The duty to heax all proceedings fairly and with patience is not inconsistent with
the duty to dispose promptly of the business of the court. Special Masters can be
efficient and businesslike while being patient and deliberate. The Special Master
shall have the discretion to continue matters which cannot be disposed of within
the time allotted by the Clerk.
A Special Master must refrain from speech, gestures or other conduct that could
reasonably be perceived as sexual haxassment and must require the same standard
of conduct of others subject to the Special Master's direction and control.
A Special Master shall perform judicial duties without bias or prejudice. A
Special Master shall not, in the performance of judicial duties, by words or
conduct manifest bias or prejudice, including but not limited to bias or prejudice
based upon race, sex, religion, national origin, disability, age, sexual orientation
or socioeconomic status.
-2-
A Special Master must perform judicial duties impartially and fairly. A Special
Master who manifests bias on any basis in a proceeding impairs the fitness of the
proceeding and brings the judiciary into disrepute. Facial expression and body
language, in addition to oral communication, can give to parties or lawyers in the
proceeding, the media and others an appearance of judicial bias. A Special
Master must be alert to avoid behavior that may be perceived as prejudicial.
A Special Master shall require lawyers in proceedings before the Special Master
to refrain from manifesting, by words or conduct, bias or prejudice based upon
race, sex religion, national origin, disability, age, sexual orientation or
socioeconomic status, against parties, witnesses, counsel or others.
A Special Master shall accord to every person who has a legal interest in
proceedings, or that person's lawyers, the right to be heard according to law. A
Special Master shall not initiate, permit, or consider ex parte communications, or
consider other communications made to the Special Master outside the presence
of the parties concerning a pending or impending proceeding.
A Special Master may obtain the advice of a disinterested expert on the law
applicable to a proceeding before the Special Master if the Special Master gives
notice to the parties of the person consulted and the substance of the advice, and
affords the parties reasonable opportunity to respond.
A Special Master may consult with court personnel whose function is to aid the
Special Master in carrying out the Special Master's adjudicative responsibilities
or with other Special Masters.
2. Complaint Resolution Procedures
a. Upon receipt of a complaint, the complainant shall be advised that the complaint
shall be filed in writing.
b. Complaints shall be filed in writing and submitted to the Clerk of the Special
Master.
c. Upon receipt of the written complaint, within two (2) business days, the Clerk of
the Special Master shall forward the original to Chief Special Master and a copy
to the Special Master against whom the compliant was filed.
d. The Chief Special Master shall review the complaint.
Within ten (10) calendar days, the Special Master against whom the complaint
was filed, if so chooses, shall submit to the Chief Special Master a response to the
complaint.
-3-
f. The Chief Special Master shall review the response, the complaint and any all
other information available regaxding the complaint.
g. Upon a thorough review of the all information regarding the complaint, the Chief
Special Master shall discuss the findings with the Special Master against whom
the complaint was filed.
h. Within 30 calendar days, upon receipt of the complaint, the Chief Special Master
shall submit a final report of its findings to the Mayor and City Commission, the
City Attorney, City Manager, the Complainant, and the Special Master.
i. Appropriate sanctions shall be taken, if necessary, against the Special Master.
3. Chief Special Master
Maintain the same language with the following provisions:
a. If the complaint is filed against the Chief Special Master, upon receipt of the
complaint by the Clerk of the Special Master, the complaint shall be
forwarded to the City Manager and the City Attorney.
b. Within seven (7) days of receipt of the complaint by the City Manager and/or
City Attorney, a Mediator shall be appointed by the City Manager and the
City Attorney and provided a copy of the complaint.
c. If the complaint is filed against the Chief Special Master, all references to the
Chief Special Master shall be substituted with a Mediator appointed by the
City Manager and City Attorney and the Special Master shall be substituted
with the Chief Special Master.
T:\AGENDA~2003\jun1103\consent\Special Master Complaint Process.doc