2008-26840 Reso
RESOLUTION NO.
A RESOLUTION OF
THE CITY OF MIAMI
PERFORMANCE EVi
THE CITY ATTORI~
AND, IN CONSIDER,
PERFORMANCE DU
2007, THROUGH AP
THREE (3) PERCEN'
(COLA) OF FIVE
ATTORNEY'S CONTI
FOR AN ADDITIONAL
EXPIRATION OF THE
2008-26840
THE MAYOR AND THE CITY COMMISSION OF
BEACH, FLORIDA, RELATING TO THE ANNUAL
LUATION OF THE CITY ATTORNEY; RECEIVING
.Y'S PERFORMANCE EVALUATION REPORT;
,TION OF THE CITY ATTORNEY'S EXEMPLARY
LING THE CONTRACT YEAR FROM APRIL 11,
;IL 10, 2008, GRANTING A MERIT INCREASE OF
GRANTING A COST OF LIVING ADJUSTMENT
5) PERCENT; AND EXTENDING THE CITY
ACT OF EMPLOYMENT, DATED APRIL 11, 2006,
ONE (1) YEAR TERM, COMMENCING UPON THE
INITIAL TERM OF SAID CONTRACT;
WHEREAS, at its meeting on March 8, 2006, the Mayor and City Commission
unanimously approved Jose Smith as City Attorney; and
WHEREAS, Mr. Smith's engagement is reflected in an Employment Contract
dated, April 11, 2006, and approved by the City Commission pursuant to Resolution No.
2006-26176 (the Employment Contract); and
WHEREAS, the Employment Contract provides for an annual performance
review and evaluation of the City Attorney, at which time the City Commission shall
review the annual salary and/or other benefits of the City Attorney, and make
adjustments in such amounts and to such extent as the City Commission may determine
that it is desirable to do so; and
WHEREAS, the Employment Contract further provides that an annual salary
review of the City Attorney shall be made every year within thirty (30) days after April
11 `h of each Contract year; and
WHEREAS, the Mayor and Commission have reviewed the Performance
Evaluation Report submitted by the City Attorney, dated April 18, 2008; and
WHEREAS, a meeting of the Committee of the Whole was held during the City
Commission meeting of June 25, 2008, at which time the Mayor and City Commission
convened to review and evaluate the performance of the City Attorney, in accordance
with the Employment Contract, and as set forth above; and
WHEREAS, in consideration and recognition of the City Attorney's exemplary
performance and achievements for the Contract year between April 11, 2007 and April
10, 2008, the Mayor and City Commission hereby deem that it is in the best interest of
the City to approve the foregoing adjustments to the City Attorney's salary and benefits,
and other aspects of the Employment Contract, all as further set forth below.
NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that, having received and
reviewed the Performance Evaluation Report submitted by the City Attorney, dated April
18, 2008, and following a duly noticed meeting of the Committee of the Whole on June
25, 2008 to review and evaluate the performance of the City Attorney for the Contract
year commencing on April 11, 2007 and ending on April 10, 2008, and in consideration
and recognition of the City Attorney's exemplary performance during said Contract year,
the Mayor and City Commission hereby approve the following:
salary.
APPROVED AS TO
FORM & LANGUAGE
1. The City Attorney will be granted a three (3) percent merit increase in base
2. The City Attorney will be granted a five (5) percent Cost of Living Adjustment
(COLA).
3. Mr. Smith's engagement as City Attorney shall continue under and
pursuant to the terms and conditions of the Employment Contract, as approved pursuant
to Resolution No. 2006-26176, and as further amended by this Resolution, until the
same is modified, amended, or terminated by action of the Mayor and City Commission.
4. The initial term of the Employment Contract, as set forth in Section 2. A.
thereof, is hereby extended by one (1) additional year, commencing on April 11, 2010,
and ending on April 10, 2011, and all other necessary adjustments to the Employment
Contra-pct are made to reflect said change.
5. The Mayor is hereby directed to provide the City Attorney with a summary
written statement of the findings of the Committee of the Whole, pursuant to the City
Commission's review and evaluation of the City Attorney's performance, as provided in
Section 7. A. of the Employment Contract.
6. This Resolution shall become effective upon adoption and be retroactive to
April 11, 2008.
PASSED and ADOPTED this 25th day of June 2008.
MAYO
Matti Herrera Bower
AT EST:
~'~ G~,rt C~~_.
CITY CLERK
Robert Parcher
F:\atto\SMIJ\RESOS-ORDINANCES\City Attorney Evaluation Reso 2008.doc
& FOR ELUTION
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city Attu ne ~~ Date
m /~IAMIBEACH
Office of the City Attorney
dose Smith, City Attorney
Performance Evaluation
Year Ending April 11, 2008
Agenda Item R F'
Date (~-aS-O$
TABLE OF CONTENTS
Page
ORGANIZATIONAL CHART ............................................................................................ ii
INTRODUCTION .............................................................................................................1
DUTIES ............................................................................................................................2
THE LAWYERS AND THEIR RESPONSIBILITIES .........................................................3
PERFORMANCE HIGHLIGHTS ........................................................................6
I. LITIGATION ..............................................................................................6
II. LAND USE/LEGISLATION ..........................................................................7
III. TRANSACTIONS ..............................................................................7
IV. CHARTER AMENDMENTS/ORDINANCES/RESOLUTIONS ........................8
V. LEGAL OPINIONS .....................................................................................8
VI. CODE COMPLIANCE ....................................................................................8
VII. RESORT TAX ...................................................................................9
VIII. INTERN PROGRAM ..........................................................................9
IX. TRAINING .........................................................................................9
X. STAFF CHANGES ............................................................................10
XI. COMMUNITY OUTREACH ...........................................................................10
XII DEPARTAMENTAL COOPERATION .............................................................10
CONCLUSION .............................................................................................11
CHARTS
A. FY 08 OUTSIDE COUNSEL FEES PAID (LABOR AND EMPLOYMENT)
B. FY 08 OUTSIDE COUNSEL FEES PAID (GENERAL MATTERS)
C. CAO SALARIES
D. PERSONAL INJURY SETTLEMENTS
E. LAWSUITS FILED AGAINST THE CITY
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INTRODUCTION
As I did during my first year as City Attorney, I continue to focus on the five (5)
principal areas where improvement was necessary.
Professionalism of staff.
2. Recruitment efforts
3. Communication
4. Litigation philosophy
5. Outside counsel fees.
I am pleased to advise that significant progress continues to be made in all five
(5) areas. In addition, an extra effort was made this year to help the community better
understand the role of the City Attorney's Office. Within the confines of the City Charter,
we are assisting residents resolve legal problems.
As part of this community outreach, the City Attorney's Office, for the first time is
participating in the Neighborhood Leadership Academy. Our staff is (on their time) also
providing free legal services to qualified low income residents of the North Beach Legal
Clinic (Hispanic Community Center).
We have also completely overhauled our website to provide more interesting and
helpful information for all residents and others who may have questions about legal
issues. Our I.T. people tell me that it is one of the most popular sites in the city.
Finally, in light of the buy
well within the appropriated
particularly in staff salaries and
work in-house, we are doing i
collecting significant funds owi
settlements.
getary constraints all city departments face, we will stay
FY 07-08 budget, and realize significant savings,
outside counsel fees. Not only are we doing more legal
more efficiently at less cost to the city. We are also
d to the City and paying out far less in personal injury
DUTIES
The Office of the City Attorney is established by Article III of the City Charter which
provides:
"There shall be appointed by the City Commission of the City
of Miami Beach, a City Attorney. His/her compensation shall be
fixed by the City Commission by ordinance. The City Attorney
shall be the head of the Office of City Attorney and in this
capacity shall have the following powers:
(a) To act as the legal advisor for the municipality and all of its officers
in all matters relating to their official powers and duties.
(b) To prepare or review all ordinances, resolutions, contracts, bonds
and other written instruments in which the municipality is
concerned, and shall endorse on each his/her approval of the form,
language, and execution thereof.
(c) When required by the Commission, he/she shall prosecute or
defend, for and in behalf of the City, all complaints, suits and
controversies in which the City is a party, before any court or other
legally constituted tribunal.
(d) To attend all meetings of the City Commission.
(e) He/she shall recommend to the City Commission for adoption, such
measures as he/she deem necessary or expedient.
(f) He/she shall render opinions and/or reports on legal matters
affecting the City as the Commission may direct.
(g) He/she shall perform such other professional duties as may be
required of him/her by ordinance or resolution of the Commission or
by this Charter.
(h) To appoint and remove all unclassified personnel in the Legal
Department, including outside counsel representing the City."
2
THE LAWYERS AND THEIR RESPONSIBILITIES
Jose Smith, City Attorney. He is responsible to the Mayor and Commission for the
performance of all responsibilities imposed by the Charter and Code of the City. He is
the Manager of the legal and support staff currently totaling 21 people, as well as
outside counsel and support personnel (such as accountants and other experts used in
litigation). He has practiced law for 34 years, of which 11 have involved concentration in
local government law. He has handled civil litigation as well as corporate, real estate,
and complex transactional matters.
Donald Papy is the Chief Deputy City Attorney. He supervises the Deputy, four
other attorneys, and fills in for the City Attorney in his absence. He reports directly to the
City Attorney. Additionally, he is in direct charge of issues involving:
• Labor and personnel,
• Civil rights,
• Constitutional law,
• Police litigation,
• Federal Court litigation and appeals, and
• Administrative proceedings and appeals.
He has practiced law for 32 years and has been with the City Attorney's Office for 16
years.
Raul Aguila is the Deputy City Attorney. He supervises three Assistant City
Attorneys and is in charge of:
Drafting and/or review of contracts; handling real estate and complex
transactional matters and serving as counsel on transactional matters for all
major City departments and to the Miami Beach Redevelopment Agency, the
Miami Beach Convention Center and Jackie Gleason Theater of the Performing
Arts. He also serves as counsel to the General Obligation Fund Oversight
Committee, Finance Citywide Projects Committee, Neighborhoods Community
Affairs Committee, the Miami Beach Cultural Arts Council, and Art in Public
Places.
• He provides support in general civil litigation, with emphasis on procurement law,
real estate, and landlord and tenant law, and handles review of bid protests and
debarment proceedings. He also drafts procurement legislation and provides
support for issues involving ethics (including ethics opinions and orientation).
Mr. Aguila has been a practicing attorney for 22 years and has been with this office
for 15 years.
3
Jean Olin is an Outside Special Counsel to the City Attorney.
She has extensive experience on matters of ethics, sunshine law, elections, charter
Amendments, procurement and complex municipal litigation. She is Board Certified and
a well recognized expert in those areas.
Gary M. Held is a First Assistant City Attorney. His areas of expertise ,include:
• Historic preservation
• Land use litigation and appeals
• Environmental law and related areas, such as the interface of land use and
constitutional issues, involving religious institutions, adult entertainment and
freedom of expression.
• Planning. He is counsel to the Planning Department, Planning Board, Design
Review Board, Zoning Board of Adjustment, Historic Preservation Board, the
Commission Land Use Committee and other Committees, the Public Works and
Building Departments and Administration on matters within his area of expertise.
He has practiced law for 25 years and has been with the City Attorney's Office for 9
years.
Debora Turner is a First Assistant City Attorney. Ms. Turner handles:
• Land use litigation and appeals
• General civil and commercial litigation
• Administrative matters
• She also serves as co-counsel to the City's Zoning Board of Adjustment, Historic
Preservation Board, Design Review Board, and Planning Board.
• She drafts ordinances, resolutions and legal opinions on a variety of topics.
• She also provides support for Sunshine Law issues, including board member
compliance.
Ms. Turner has practiced law for 25 years and has been with the City Attorney's
Office for 19 years.
Rhonda Montoya Hasan is a First Assistant City Attorney. She is involved with:
• General civil, complex commercial construction and appellate litigation, and
• Administrative proceedings.
• Additionally, she serves as counsel to the Fire Department and Building
Department on State law and code matters affecting their functions, including all
enforcement and administrative proceedings.
• She handles litigation for the Redevelopment Agency and the Capital
Improvement Projects (CIP) Division.
4
Ms. Montoya has been a lawyer for 18 years and been with this Office for 11 years.
She lectures locally and nationally on fire and building code issues
Steven Rothstein is a First Assistant City Attorney. Mr. Rothstein handles:
• Foreclosures
• Litigation
• Forfeitures
• Garnishment
• Police liaison
Mr. Rothstein has been a lawyer for 20 years and will soon complete his second
year with the City.
Kimberly McCoy is a Senior Assistant City Attorney. She handles
• Employment matters.
• Civil rights litigation
She has lectured in the area of equal employment opportunity and worker rights
and has been a member of the Florida Chapter of the National Employment Lawyers
Association, the American Bar Association and the Florida Bar Association's Labor &
Employment, Individual Rights and Responsibilities and International Law Sections. Ms.
McCoy is as an adjunct professor of the FIU College of Law.
Ms. McCoy joined this office in January 2008.
Sheri Sack is a First Assistant City Attorney (part time). She is a recognized expert
on:
• Constitutional law and handles litigation involving complex constitutional issues
• General appellate litigation.
She has been a lawyer for 20 years and has been with the City for 15 years.
Rodney Smith is a Senior Assistant City Attorney. He currently handles:
• Code Compliance
• Special Master Cases
• Personal Injury Cases.
He has been an attorney for eight years and started with he has been with the city
for one year.
5
PERFORMANCE HIGHLIGHTS
The following is a summary of performance highlights during the past year:
I. LITIGATION
• Successfully resolved an insurance claim exceeding $1.3 million against the
City's worker's compensation excess insurance carrier and our outside claims
agent. The carrier had improperly assessed a "40% Late Reporting Penalty" on
a catastrophic injury claim.
• Obtained a Summary Final Judgment in favor of the city on a serious personal
injury lawsuit filed by Plaintiff Dwight Downs who claimed he was rendered a
quadriplegic upon diving into the beach at 73 Street and striking his head upon a
rock. The potential financial exposure was in the millions of dollars.
• Obtained dismissals or Summary Judgments in favor of the city on several trip
and fall cases.
• After ten (10) years of wrongful death litigation involving a double drowning and
multiple claims, the Breaux/Poleyeff cases were settled. The terms of the
settlements are complex but essentially limit the city's financial exposure to the
statutory cap (no claims bill will be sought) and the city retains the ability to seek
reimbursement from the concessionaire's liability insurance carrier.
• Successfully argued the D.A. Mortgage case before the U.S. 11th Circuit Court of
Appeals which upheld the constitutionality and enforcement of the Noise
Ordinance. This landmark decision concluded thirteen (13) years of litigation.
• Favorably concluded a number of high profile employment, labor and civil rights
cases.
• Recovered over $100,000.00 in police confiscation, forfeiture, code and
collection proceedings.
• Aggressively defended the City's legal position regarding the County's claim for
unpaid water connection fees. While unappreciated by the County, the City's
hard line positions have resulted in higher fee collections by the County from
developers.
• Successfully defended the City's award of the South Pointe Park construction
project to MCM, Inc., before the Florida 3rd District Court of Appeal.
• Successfully opposed subpoena for release of attorney/client transcripts in the
Club Madonna matter.
6
Actively defending the city's interests in high profile, complex, and important land
use litigation such as La Gorce, North Beach Recreation Corridor, Waverly, Short
Term Rentals, and Bayshore.
• Aggressively defending the city's legal position on various city ordinances against
constitutional attacks from the ACLU.
• Successfully resolved claim by Continuum II against the City protecting the City's
interest and avoiding significant financial exposure.
II. LAND USE/LEGISLATION
• Commercial Use (Party House) Ordinance
• Accessory Use Ordinance
• Hospital District Charter Amendment and revision of land development
regulations.
• School Board Interlocal Agreement and Concurrency Management System.
• Drafted City's new Sidewalk Cafe Ordinance
• Carlo Gambino (5600 LaGorce Drive) Revocable Permit request and
resolution/removal of illegal encroachments (pool and deck) over City Easement
and on a portion of LaGorce Golf Course
III. TRANSACTIONS
1111 Lincoln Road Development Agreement--public landscaping/fountain and
other streetscape improvements and closing off of 1100 Block of Lincoln Road in
connection with private development of 1111 Lincoln Road Project (Robert
Wennett, Developer).
Live Nation Management and Operation Agreement for Jackie Gleason Theater
of the Performing Arts (now, The Fillmore Miami Beach at the Jackie Gleason
Theater )
Washington Avenue Properties/Affordable Housing --Prepared loan documents,
restrictive covenants, and represented CMB/RDA on closing of three (3)
apartment buildings (The Allen, The Barclay, and The London) in the City
Center/Historic Convention Village Redevelopment Area (RDA). In furtherance
of the RDA's amendment to the City Center RDA Redevelopment Plan to
develop "workforce housing," the City/RDA loaned MBCDC the purchase price
7
and related costs, in the estimated amount of $13,900,000, to develop and rehab
the properties for affordable housing. The City/RDA funds were secured
by individual loans and notes, as well restrictive covenants requiring
the properties to be maintained as affordable housing for a minimum of 30
years and providing, after conclusion of said 30 yr. term, and at City/RDA's
election, for conveyance of properties to City/RDA.
• Agreement with Centerplate/Barton G. for Operation and Management of Food
and Beverage Concessions at Miami Beach Convention Center
• Agreement with New World Symphony for Development and Operation of
Outdoor Screen (Video) and Audio System
69th Street Easement Agreement. (Canyon
in reaching a compromise which maintains
vehicular access needs of adjacent projects.
Ranch) Assisted the Administration
pedestrian character while satisfying
IV. CHARTER AMENDMENTS
ORDINANCES/RESOLUTIONS
In addition to drafting many important ordinances such as the Commercial Use
(Party House) ordinance, and the sidewalk cafe ordinance, my office is often tasked
with the responsibility of drafting Charter Amendments and Resolutions. Specific quality
of life issues addressed include beach preservation, animal control, traffic alcohol sales,
and land use regulation. We have also drafted extensive ethics and campaign finance
legislation.
V. LEGAL OPINIONS
During the past year, the City Attorney's office issued numerous legal opinions
(formal and informal) in response to questions from the elected officials, the City
Manager and his staff.
VI. CODE COMPLIANCE AND SPECIAL MASTER
The City Attorney's Office represents the City Administration in all matters
brought before the Special Master. We took an active role in recruiting the new Chief
Special Master Judge Mario Goderich. We have developed a closer more professional
relationship with all participants to ensure that matters brought before the Special
Master are presented in a more professional and efficient manner.
s
VII. RESORT TAX
Resort Tax, a department in the Finance Department, refers cases to Legal for
collection when their collection efforts have failed. The City Attorney's Office has
created a data base in order to automate and simplify the collection process. Prior to
filing the complaint, a demand letter is sent advising the business owner that court
action will follow if payment is not received by a specified date. If the defendant does
not pay the outstanding tax, a code compliance citation is issued and set for hearing
before the Special Master and a complaint is filed, seeking injunction and damages.
VIII. INTERN PROGRAM
My office is a proud participant in the University of Miami School of Law's Clinical
Skills Program which places second and third year law students with our office as
interns for a semester. These interns are certified by the Florida Supreme Court and
earn educational credits for their service. The Program exposes students to advanced
issues of municipal law, providing experience in research, litigation support, taking
depositions, preparing memos of law, and motions. Some interns have been allowed to
handle oral arguments before the Circuit Court. Our office has also accepted interns
from other law schools around the state and country with exceptional academic records.
IX. TRAINING
• Inter-departmental Training Programs (Coordination and Execution)
Attorneys and staff attended free seminars by Attorneys Title Insurance Fund
and Westlaw, coordinated by the City Attorney's Office. These seminars gave the
department tips on how to further reduce costs while performing legal research and how
to save by taking advantage of features such as the Wested Legal Education Center
that provides thousands of free Continuing Legal Education courses.
• Participation in Outside Training
All staff is encouraged to participate and many members have taken part in
programs offered by the City, e.g., Supervisor Essential Training, and Geographical
Information System classes.
9
X. STAFF CHANGES AND PROCEDURES THAT HAVE INCREASED
PERFOMANCE AND EFFICIENCIES
The office has increased efficiencies and is providing better service in the following
ways:
• More coverage in reception (longer hours) 8:30 a.m. to 5:30 p.m. to better serve
the needs of the City.
• Better coverage during City Commission meeting. (More staff members available
during Commission meetings)
• Better Customer Service.
• Better coordination of work assignments.
• Better supervision of support staff.
• Complete overhaul of existing website with additions of resource sections for the
Community.
• Sought and obtained new methods to receive free CLE training
XI. COMMUNITY OUTREACH
• For the first time, the City Attorney's Office is participating in the Neighborhood
Leadership Academy, providing residents with resources and with a better
understanding of the office.
• In 2008, attorneys from the City Attorney's Office began donating free legal
services to low-income residents at the Miami Beach Bar Association's Pro Bono
project, the North Beach Clinic.
XII. DEPARTMENTAL COOPERATION
Member of Committee to create the "The Zone"
Cooperation with the Mayor's office, the City Manager's Office and IT to create a
website designed to explain City government to children
10
CONCLUSION
It has been a great privilege to serve as City Attorney during the past year. I
have enjoyed working with the elected officials, the City Manager, his staff, as well as
the advisory boards and committees. I have also enjoyed going out to the community to
explain the role of the City Attorney's Office.
I look forward to working with you to
community. If you have any questions or
know.
keep the City of Miami Beach a world class
need additional information, please let me
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