96-21961 RESO
RESOLUTION NO.
96-21961
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING
A SETTLEMENT PROPOSAL IN THE CASE OF
MCCORMACK. ET AL. V. CITY OF MIAMI BEACH IN THE
AMOUNT OF $1,054,000, PROVIDING FOR THE FUNDING
OF THE SETTLEMENT PROPOSAL VIA THE CITY'S SELF-
INSURANCE FUND; AND AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE ALL DOCUMENTS
NECESSARY TO EFFECTUATE SAID SETTLEMENT.
WHEREAS, on September 10, 1991, twenty-eight current and former Special Weapons and
Tactics ("SWAT") team members tiled a lawsuit against the City styled McCormack. et aI. v. City
of Miami Beach, seeking overtime compensation for off-duty exercise;
WHEREAS, the Fraternal Order of Police also tiled a lawsuit against the City styled FOP v.
City of Miami Beach, claiming that the City breached the collective bargaining agreements with the
FOP because it did not pay SWAT members overtime for off-duty exercise;
WHEREAS, the Manager has stated his intent to abolish and/or restructure the City's SWAT
Team; and
WHEREAS, Special Counsel, Muller, Mintz, et aI., has submitted its opinion letter and the
City Attorney's Office has concurred in the recommendation that the City enter into a settlement in
the above styled causes as set forth in the attached letter; and
WHEREAS, the total amount of the settlement is $1,054,000, and such funds are available
in the City's self-insurance fund.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: that the City Commission
approves the settlement in the cases of McCormack. et aI. v. City of Miami Beach, and FOP v. City
of Miami Beach, as set forth in the attached letter, and that the Mayor and City Clerk are hereby
authorized to execute all documents necessary to effectuate s . d settlement.
PASSED and ADOPTED this
17th
lMYOR
l-ORM APPROVED
lE~
By~ '
Date -Wp/%
ATTEST:
J<o~t PM~
CITY CLERK
MHD:lm
nr 1\- ! -~o llUI'l 1 if. :):)
nULLI:K nlN1L
FAX NO. 305 378 3802
P. 02
tJAVIO v, KO~l'I.Iq~IC~'
MICI-{AEL W. CASEY, III
-'AMES C. CROS;'ANC
JAME:S S. 8RAMI'<ICK
P....U~ C. HEIDMANN
GOROON 0, lllOGC~~
.JOHN D. G"ONO'"
CARMEl'< S. .JOHNSON
-'......REv!:. MANO'!:..
O~NI5E M. HEEKI..
ANDREw K. Wll.llAMS
CONNA M. OICHIARA
PAUL.. T. Ryoe;R, J~.
FRANK H. HENRY
"l'CHA"lC D. TUSCHMAN
TEl:lE5A A. tiERI"'''ANN
BETST M. SANTINI
I'1ICHAEL. M. HERNANDEZ
J....CKIE .... .JO$EF>H
KELl..T CkC....p.,.
NEIL F. MCOUINNES~
RONNIE S. C...l'lTe;...
":ULlE "'.R. WAAS
M...RT E. L..TTLE
LAW OF"F"ICES
MULLER, MINTZ, KORNRli:ICH, CALDWELL
CASEY, CROSLAND & BRAMNICK, P.A.
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March 29, 1996
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Murray H. Dubbin, Esquire
City Attorney
City of Miami Beach
4th Floor
1700 Convention Center Drive
Miami Beach, Florida 33139-1819
VIA FACSIMILE
Re: Joseph T_ McCormack, ee al. v. City of Miami Beach, Florida
Case No. 91-1941-Civ-Moore; and
Fraternal Order of Police v. City of Miami Beach, Florida
circuit Court Case No_ 92-22780-CA-30
Dear Mr. Dubbin:
On September 10, 1991, twenty-eight (28) current and former SWAT
members filed suit against the City in a case styled gqseph T.
McCormack. et al. v. City of Miami Beach, Florida. Twenty-three (23) of
the Plaintiffs are employed by the City as Police Officers and five (5)
of the Plaintiffs are employed by the City as Firefighters.
Count I of the Third Amended Complaint was brought by Plaintiff
McCormack only and alleged that he was discriminated against in
violation of the Fair Labor Standards Act of 1938, 29 U.S.C. Section
201, et. seq. (01 FLSA" or "Act") (West Ann. 1978 & Supp. 1993).
Specifically, Plaintiff McCormack alleged that he was removed from the
SWAT Unit in retaliation for going to the Department of Labor regarding
compensation for off-duty time spent exercising. Count I was dismissed
by the Court on Defendant's Motion for Directed Verdict.
Count: II was brought by all Plaintiffs pursuant to Section 216(b)
of the Act. In Count II, Plaintiffs alleged that they are required to
engage in exercise for approximately eight (8) hours per week over and
above their normal work week in order to maintain their physical fitness
to perform their duties as SWAT members, pass the bi-annual
recertification, and complete the monthly tcm (10) hour training day.
HrK- l-~b nUN lq;~~
nULLl:1< MINTL
FAX NO. 305 379 3802
P. 03
Murray H. Dubbin, Esquire
March 29, 1995
Page 2
Plaintiff", seek back overtime compensation, an award of liquidated
damages, attorney's fees, and costs. This claim was submitted to the
jury at the trial of this matter in July of 1994. The outcome of the
trial will be discussed in greater detail below.
In Count. II, Plaintiffs a.lso attempted to allege a willful
violation of the Act and, therefore, sought back overtime compensation
for a period of chree years prior La the dMLe the instant suit was filed
(as compared to the normal two-year limitations period for an FLSA
claim). However, the willfulness claim was dismissed by the Court on
Defendanc's Motion for Directed Verdict.
Counts III and V were similar and both were brought pursuant to
Chapter 448, Florida Statutes. In Count III, Plaintiff Police Officers
alleged that the City's failure to pay them for time spent in off-duty
exercise was a violation of the collective bargaining agreements between
the City and the Fraternal Order of Police, william Nichols Lodge No.8.
Count v ItlaS brought by Plaintiff Firefighters who alleged that the
failure to pay overtime for their off-duty exercise was a violation of
the collective bargaining agreements between the City and the
International Association of Fire Fighters, Local No. 1510_
The Court also granted a directed verdict in the City's favor with
respect to Counts III and v, at least to the extent that Plaintiffs did
not prove an independent breach of contract. However. Plaintiffs have
taken che position that a favorable verdict as to Count II (e.g., the
FLSA overtime claim) creates a "dependent II breach of contract claim
entitling them to damages for a period of five years prior to the time
of filing suit. This issue has not yet been addressed by the Court.
Count IV alleged that the City retaliated against all Plaintiffs by
attempting to take away benefits to which they have been entitled.
Count IV was dismissed by the Court prior to trial.
Trial of this matter was bifurcated. That is, t.he issue of
liability was to be tried separately and, if necessary, the issue of
damages was to be tried later. At trial, Plaintiffs sought to amend
their claims to include time spent in preparing for SWAT tryouts,
attending SWAT tryouts, attending SWAT schools, and attending SWAT-
re lated t.raining after they became members of SWAT (i. e., add1tional
SWAT schools, training programs required by the SWAT commanders, and the
monthly training days). The City objected to the proposed amendment.
The CourL allowed amendment for only those activities that took place,
if at all, after the Plaintiffs became members of SWAT. With respect to
these limited activities included by the amendment, the City agreed to
a Consent Judgment (without any admission of wrongdoing) for breach of
contract for overtime p~y due Plaintiffs for SwAT monthly training days,
LAW O"''',Ce:s MU\.l.E:R. MINTZ. ...ORNRe'c.... CAl.OWI;;LL. CASEY, CROSl....ND & BR"'M""C;:K. F.A
H~~- l-~o nUN 14:00
nULLE~ MINTZ
FAX NO, 305 379 3802
p, 04
Murray H. Dubbin, Esquire
March 29, 1996
Page 3
SWAT recerti fication days, and required attendance at SWAT schools after
Plaintiffs became members of SWAT. Thus, by agreement of the parties,
these issues did not go to the jury.
As a result of the developments at trial, only the overtime claim
under the FLSA for off-duty exercise (e.g., Count II) was presented to
the jury for factual findings. Based on those findings, the Court
entered an Order on December 7, 1995, holding the City liable under the
FLSA for SWAT members' off-duty exercise. The second phase of the trial
--- as La damages --- has not yet been scheduled. There are numerous
outstanding issues that would need to be addressed at a second trial
including: the number of hours per week that each of the twenty-eight
(28) Plaintiffs needs to stay physically fit for SWAT, the number of
hours per week that each Plaintiff exercises, the appropriate statute of
limitations, and whether the City is entitled to Certain set-offs or
credits under the FLSA. The City would need to expend significant funds
in attorney's fees to resolve these issues and go forward with the
second phase of the trial.
With respect to damages, at the time of the trial on liability,
this case had been pending for three (3) years; therefore, the City had
exposure under the FLSA for five (5) years, and, possibly, for eight (8)
years if Plaintiffs won the "dependent rr breach issue. The calculations
on damages made at that time ranged from an unlikely low of $2 Million
Dollars to well over $4 Million Dollars. The FLSA also provides for
"liquidated damages" which permits the total back pay award to be
doubled. This issue would have been decided by the Judge. In addition
to any back pay award, attorney's fees are typically provided to the
prevailing Plaintiffs in a FLSA action.
In addition to the McCormack matter, a separate lawsuit was filed
in Dade County Circuit Court by the FOP (FOP v. CitY...Q.LJ~1iami Beach) .
In that case, the union claimed that the City had breached its
collective bargaining agreements with the FOP because the City had
failed to pay overtime to SWAT members for time spent exercising. That
case has Leen stayed pending resolution of the McCormack matter.
Recently, a tentative settl~ment was reached with the Plaintiffs in
both cases for a total amount of $1,054,000. This breaks down to a lump
sum payment to each Plaintiff of $26,000, with the exception of
Plaintiff McCormack who is to receive $52,000, and an amount of $300,000
to be paid to the law firm of Kaplan & Bloom, Plaintiffs' attorneys in
both cases. Moreover, the City has won important concessions from the
Plaintiffs and the Unions which would allow it to abolish and/or
restructure the SWAT team to make it.s operation more economical.
HYK- l-~b nUN 14:~(
MULLI:K MiNTZ
fAX NO. 305 379 3802
P. 05
Murray H. Dubbin, Esquire
March 29, 1996
Page 4.
Specifically, the McCormack Plaintiffs have agreed to waive any
claim of retaliation they may have under the FLSA as a result of the
City's ch<'inges to the SWAT Team. Just as significant. is the fact that
the FOP and the IAFF have agreed to waive any right to engage in further
bargaining over the impact of the City's decision. The Unions have also
acknowledged they have no legal right to bring any claim under the FLSA,
to file a breach of contract action or grievance under their respective
collective bargaining agreements or to file any unfair labor practice
charge under Florida law if the City abolishes or. changes the
compos;i.ti,Dn of: SWAT on or before September 30, 1.997.
As we have discussed in the past, these cases present a novel issue
of law (whether off-duty exercise constitutes compensable work time
under the FLSA). The only other case we are aware of in this area was
recently decided against Metro-Dade and is currently on appeal to the
11th Circuit Court of Appeal. In this case, Judge Moore has suggested
that, in lighL of the novelty of the issue, the City seek ~n interim
appeal to the 11th Circuit before proceeding. In this regard, we note
that the 11th Circuit's recent opinions on FLSA matters have been
leaning ~:l favor of employees.
It 16 our opinion that, considering the potential liability for
back wages, liquidated damages, and attorney's fees (as a result of the
appeals process and the possible trial on damages if the appeal does not
succeed), the tencaLlve settlement reached in this case was advantageous
to the City. Moreover, settlement of this case resulted in savings to
the City of additional attorney's fees in excess or $200,000.00 for the
costs of appeal of the liability issue and trial on the damages issue.
Please do not hesitate to contact me if you have any additional
questions or wish to discuss this matter.
Very truly YOurs,
1
: /' G-..c~..( h-J./ cJ
_ ~'-_ --L.. > L.
('- ames c. Crosland
[Original sent via U.S. Mail]
B~001\,ICCHS1. .f'C
'-"'''' O,,"~ICES MUI..I.E:R. M''''TZ, KO~N~e:ICH. CAI..DWE:L.I... CASe:,., CROSLAND lII: BRAMNICK. "'.A.
OFFICE OF THE CITY ATTORNEY
~tI~7ImM
F
L
o
R
o
A
MURRAY H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673- 7002
COMMISSION MEMORANDUM NO. 193-96
TO:
MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
CITY MANAGER JOSE GARCIA-PEDROSA
MURRAY H. DUBBIN I1AJ 1 JYf. ~ J. iJ--.
CITY ATTORNEY 'vvl (jUJIWFF
FROM:
SUBJECT:
SETTLEMENT OF OVERTIME LAWSUITS: MCCORMACK. ET AL. v. CITY
OF MIAMI BEACH. ET AL., UNITED STATES DISTRICT COURT, SOUTHERN
DISTRICT OF FLORIDA, CASE NO. 91-1941-CIV -MOORE; and F.O.P. v. CITY
OF MIAMI BEACH, ELEVENTH JUDICIAL CIRCUIT COURT, CASE NO. 92-
22780 CA 30.
DATE:
APRIL 17, 1996
CITY ATTORNEY RECOMMENDATION:
Based upon the recommendation of the City's outside counsel, which has represented the City
in the above-referenced cases, the City Attorney's Office concurs that the City Commission approve
the attached Resolution, settling the above-captioned lawsuits brought by twenty-eight (28) current
and former Special Weapons and Tactics ("SWAT") team members of the City of Miami Beach
Police Department and by the Fraternal Order of Police, William Nichols Lodge No.8.
BACKGROUND:
Plaintiffs in the McCormack case are twenty-eight (28) current or former members of the
City's SWAT team. Twenty-three (23) of the Plaintiffs are employed by the City as Police Officers
and five (5) of the Plaintiffs are employed by the City as Fire Fighters. Plaintiffs' initial Complaint
was filed on September 10, 1991. In their Third Amended Complaint, Plaintiffs attempted to state
five separate Counts against the City. AGENDA
ITEM
~G
4:D- '1 ~
DATE
1700 Convention Center Drive - Fourt~iloor - Miami Beacn, .l'IOnda .:S.:SU9
MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
CITY MANAGER JOSE GARCIA-PEDROSA
PAGE 2
APRIL 17, 1996
Count I was brought by Plaintiff McCormick only and alleged that he was discriminated
against in violation of the Fair Labor Standards Act of 1938,29 U.S.C. Section 201, et seq. ("FLSA"
or "Act") (West Ann. 1978 & Supp. 1993). Specifically, Plaintiff McCormack alleged that he was
removed from the SWAT Unit in retaliation for going to the Department of Labor regarding
compensation for off-duty time spent exercising. Count I was dismissed by the Court on Defendant's
Motion for Directed Verdict.
Count II was brought by all Plaintiffs pursuant to Section 216(b) of the Act. In Count II,
Plaintiffs alleged that they have been required to engage in exercise for approximately eight (8)
hours per week over and above their normal work week in order to maintain their physical fitness
to perform their duties as SWAT members, pass the bi-annual recertification, and complete the
monthly ten (10) hour training day. Plaintiffs seek back overtime compensation, an award of
liquidated damages, attorney's fees and costs. This claim was submitted to a jury at the trial of this
matter in July of 1994.
In Count II, Plaintiffs also attempted to allege a willful violation of the Act and, therefore,
sought back overtime compensation for a period of three years prior to the date the instant suit was
filed (as compared to the normal two-year limitations period for an FLSA claim). However, the
willfulness claim was dismissed by the Court on Defendant's Motion for Directed Verdict.
Counts III and V were similar and both were brought pursuant to Chapter 448, Florida
Statutes. In Count III, Plaintiff Police Officers alleged that the City's failure to pay them for time
spent in off-duty exercise was a violation of the collective bargaining agreements between the City
and the Fraternal Order of Police, William Nichols Lodge No.8. Count V was brought by Plaintiff
Fire Fighters who alleged that the failure to pay overtime for their off-duty exercise was a violation
of the collective bargaining agreements between the City and the International Association of Fire
Fighters, Local No. 1510.
The Court granted a directed verdict in the City's favor with respect to Counts III and V, at
least to the extent that Plaintiffs did not prove an independent breach of contract. However,
Plaintiffs have taken the position that a favorable verdict as to Count II (e.g., the FLSA overtime
claim) creates a "dependent" breach of contract claim entitling them to damages for a period of five
years prior to the time of filing suit. This issue has not yet been addressed by the Court.
Count IV alleged that the City retaliated against all Plaintiffs by attempting to take away
benefits to which they have been entitled. Count IV was dismissed by the Court prior to the trial.
Trial of this matter was bifurcated. That is, the issue of liability was to be tried separately
MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
CITY MANAGER JOSE GARCIA-PEDROSA
PAGE 3
APRIL 17, 1996
and, if necessary, the issue of damages was to be tried later. At trial, Plaintiffs sought to amend their
claims to include time spent in preparing for SWAT tryouts, attending SWAT tryouts, attending
SWAT schools, and attending SWAT -related training after they became members of SWAT (i.e.,
additional SWAT schools, training programs required by the SWAT commanders, and the monthly
training days). The City objected to the proposed amendment. The Court allowed amendment for
only those activities that took place, if at all, after the Plaintiffs became members of S W AT. With
respect to these limited activities included by the amendment, the City agreed to a Consent Judgment
(without any admission of wrongdoing) for breach of contract for overtime pay due Plaintiffs for
SWAT monthly training days, SWAT recertification days, and required attendance at SWAT schools
after Plaintiffs became members of SWAT. Thus, by agreement of the parties, these issues did not
go to the jury.
As a result of the developments at trial, only the overtime claims under the FLSA for off-duty
exercise (e.g., Count II) was presented to the jury for factual findings. Based on those findings, the
Court entered an Order on December 7, 1995, holding the City liable under the FLSA for SWAT
members' off-duty exercise. The second phase of the trial -- as to damages -- has not yet been
scheduled. There are numerous outstanding issues that would need to be addressed at a second trial,
including: the number of hours per week that each of the twenty-eight (28) Plaintiffs needs to stay
physically fit for SWAT, the number of hours per week that each Plaintiff exercises, the appropriate
statutes oflimitations period, and whether the City is entitled to certain set-offs or credits under the
FLSA. The City would need to expend significant funds in attorney's fees to resolve these issues
and go forward with the second phase of the trial.
This case presents a novel issue of the law (whether off-duty exerCIse constitutes
compensable work time under the FLSA). The only other case dealing with this issue was recently
decided against Metro-Dade and is currently on appeal to the 11th Circuit Court of Appeal. In this
case, Judge Moore has suggested that, in light of the novelty of the issue, the City seek an interim
appeal to the 11th Circuit before proceeding. However, the 11th Circuit's recent opinions on FLSA
matters have been leaning in favor of employees.
With respect to damages, at the time of trial, this case had been pending for three (3) years;
therefore, the City had exposure under FLSA for five (5) years, and, possibly, for eight (8) years if
Plaintiffs had won the "dependent" breach issue. The calculations on damages made at that time
ranged from an unlikely low of $2 million to well over $4 million. The FLSA also provides for
"liquidated damages" which permits the total back pay award to be double. This issue would have
been decided by the Judge. In addition to any back pay award, attorney's fees are typically provided
to the prevailing Plaintiffs in a FLSA action.
MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
CITY MANAGER JOSE GARCIA-PEDROSA
PAGE 4
APRIL 17, 1996
In addition to the McCormack matter, a companion case was filed in Dade County Circuit
Court by the FOP (FOP v. City of Miami Beach). In that case, the union claimed that the City had
breached its collective bargaining agreements with the FOP because the City had failed to pay
overtime to SWAT members for time spent exercising. That case has been stayed pending resolution
of the McCormack matter.
Recently, a tentative settlement was reached with the Plaintiffs in both cases for a total
amount of $1 ,054,000. This breaks down to a lump sum payment to each Plaintiff of $26,000, with
the exception of Plaintiff McCormack who is to receive $52,000, and an amount of $300,000 to be
paid to the law firm of Kaplan & Bloom, Plaintiffs' attorneys in both cases. Moreover, the City has
won important concessions from the Plaintiffs and the Unions which would allow it to abolish and/or
restructure the SWAT team to make its operation more economical.
S pecificall y, the McCormack Plaintiffs have agreed to waive any claim of retaliation they
may have under the FLSA as a result of the City's changes to the SWAT Team. Just as significant
is the fact that the FOP and the IAFF have agreed to waive any right to engage in further bargaining
over the impact of the City's decision. The Unions have also acknowledged they have no legal right
to bring any claim under the FLSA, to file a breach of contract action or grievance under their
respective collective bargaining agreements, or to file any unfair labor practice charge under Florida
law ifthe City abolishes or changes the composition of SWAT on or before September 30, 1997.
CONCLUSION:
Approval of the attached Resolution is recommended, providing for payment of$1,054,000
after fully executed releases are received from all Plaintiffs with said Releases to be approved by the
Legal Department.
Attachments
(dmplks f\attolpapdlswat.cm)