Broward Ruling On Severance Pay May Help Fired City Attorneys Case
Written by Risa Polansky on March 6, 2008
By Risa Polansky
Should fired Miami city attorney Jorge Fernandez receive severance pay even after resigning his post and pleading no contest to two misdemeanors, he may have himself to thank.
The 2006 commission would also deserve some gratitude, and perhaps a 1990s court ruling in Broward County that gave a county official convicted of tax evasion the right to severance pay. The official’s contract specified a severance pay entitled upon termination and included no clarifying clauses, the court concluded.
Mr. Fernandez himself presented to commissioners in 2006 a compensation agreement that grants him the right to six months’ severance pay upon "separation" from the city — and the commission approved it.
Having pleaded no contest to misusing his expense account, Mr. Fernandez claims he is owed about $300,000.
"He drafted his own agreement," said Commissioner Marc Sarnoff, an attorney elected to the commission after the agreement was approved in 2006.
Now, two years later, current commissioners want to fight it.
They voted last week to deny Mr. Fernandez severance, rejecting his proffered resignation and firing him instead.
But the agreement stipulates severance upon "separation," not termination. The clause exists also in the city clerk and independent auditor general’s compensation agreements.
Commissioner Tomás Regalado insisted that "if there is a legal challenge by the former city attorney trying to get some of the benefits, the city should be aggressive in going to court to fight any attempts."
Not to save money, necessarily, he said, but to salvage trust.
"Even if we need to expend as equal amount or more money to fight giving away the people’s money to somebody that has betrayed the public trust, it’s worth it," Mr. Regalado said. "The people of Miami cannot afford any more scandals."
After an investigation by the State Attorney’s Office, Mr. Fernandez pleaded no contest to misspending his $10,000-a-year expense account and making false statements.
A severance package could total about $300,000, including accrued vacation and sick leave.
Mr. Fernandez said he was unable to comment, citing a gag order as a condition of his no-contest plea.
City Attorney Maria J. Chiaro said the commission does have the authority to deny the severance pay.
City Manager Pete Hernandez, however, said attorney James C. Crosland, consulted as an outside counselor, said the city needs to honor the agreement.
"There is significant legal support for the position that Mr. Fernandez should be paid according to the terms of his employment," Mr. Crosland wrote to Mr. Hernandez.
He cited Barakat v. Broward County Housing Authority, a case in which an appeal court ruled a county employee fired in the 1990s after being convicted of federal tax evasion still deserved severance because of his contract’s wording. It didn’t include a specific clause denying severance in the case of a criminal conviction, the court said.
"Moreover, should litigation occur and Mr. Fernandez be deemed the prevailing party, the city could be exposed to payment of his reasonable attorney’s fees," Mr. Crosland added.
Citing a need to protect taxpayers’ interests, commissioners ignored the advice.
"There are certain principles that are worth litigating over," Mr. Sarnoff said.
"I don’t understand what is so wrong about trying to defend the little trust that the people still have in the city," Mr. Regalado said.
He was responsible in 2006 for evaluating Mr. Fernandez’s performance but did not have a role in writing the agreement, he said.
"I was charged with the evaluation, not with the benefits package."
He and fellow commissioners did not question the severance clause, Mr. Regalado said, "because it’s a standard" clause and because they trusted fellow officials to follow the law.
In another point of contention, the former city attorney’s agreement, due for renewal after November’s municipal election, was never considered by the commission.
"By custom and policy," Ms. Chiaro said, Mr. Fernandez was responsible for placing his renewal item on a commission agenda.
City Clerk Priscilla A. Thompson did so in December. Mr. Fernandez never followed suit, and the commission never questioned why or demanded a compensation proposal.
"If it’s his contract, he should be responsible for putting it on the agenda," Commissioner Michelle Spence-Jones said.
Because he didn’t, Mr. Hernandez said, the 2006 agreement remained in effect.
A 2004 agreement left any decision regarding severance pay up to commissioners.
They approved an amended version in 2006 that included the "at time of separation" clause, with Ms. Spence-Jones and former Commissioner Linda Haskins dissenting.
That won’t happen in the future, commissioners pledged.
"If there’s anything attached from a criminal perspective," Ms. Spence-Jones said, "this should not even be a discussion."
Added Mr. Regalado in an interview, "it’s a clear message. The next time around, we have to get an outside attorney to look at the contract."