Once burned, Miami commissioners vow closer scrutiny of key employee contracts
By Risa Polansky
Severance pay will no longer be a free-for-all at City Hall, Miami commissioners say.
Not only are they fighting to hold on to the money former city attorney Jorge Fernandez says they owe him after being fired for pleading no contest to two misdemeanors, but they plan to make sure no other commission-employed official has the chance to ask.
The compensation agreements of both City Clerk Priscilla A. Thompson and Independent Auditor General Victor Igwe contain the same clause that may end up being Mr. Fernandez's ticket to a $300,000 windfall — six month's severance upon "separation."
Commission Chairman Joe Sanchez says he plans to go back to the contracts "to assure that this does not happen again in the city."
The commission approved all three one-page agreements, Mr. Fernandez's in 2006 and the others late last year.
"Shame on us," Mr. Sanchez said. "I am going to be requesting from the city manager that the contracts are presented to me."
In the future, he said, "we need to have language to protect the city and the taxpayers."
Interim City Attorney Maria J. Chiaro confirmed the commission has the authority to alter the compensation packages before they come up for renewal.
It would require a vote by commissioners to amend the resolutions enacting the agreements.
Commissioner Marc Sarnoff, an attorney, hopes for more.
"Nobody should have a terms and emoluments sheet," he said. Appointed city officials' employment should be governed by "five, six, seven-page agreements with morals clauses, termination clauses that do not net you severance pay."
In the current page-long documents, the word "separation" without any qualifiers could leave the door open for the employee to collect severance under any circumstance.
Ms. Chiaro advised last week the commission does have the right to deny the severance pay to Mr. Fernandez.
But James C. Crosland, an attorney consulted by the city to opine on the ex-city attorney's clause, 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 in a letter to City Manager Pete Hernandez.
He cited Barakat v. Broward County Housing Authority, a case in which the courts ruled a county employee fired in the '90s after being convicted of federal tax evasion still deserved severance because of his contract's wording — upon "termination," with no caveats.
"Common sense tells you that if he does something illegal, we don't have to pay him (Mr. Fernandez)," Mr. Sanchez said.
Still, he said, the agreement "should have been reviewed by outside counsel — not the city attorney."
Now is the city's chance to learn from its mistakes, the commissioners say.
"The giveaways have got to end," Mr. Sarnoff said.
Both City Clerk Thompson and Independent Auditor General Igwe said the commission is welcome to alter their agreements.
"I don't have any problem if they choose to change it," Mr. Igwe said.
The only reason the clause is in his contract in the first place, he said, is because it first appeared in the city attorney's.
"Once they approve the first one (compensation agreement), they use it as a blueprint for the following one," Mr. Igwe said. "They used the shell document that they used for the city attorney and the city clerk."
Mr. Sarnoff warned that "we also have to be careful about this vacation pay and sick pay."
Mr. Fernandez's requested $300,000 in severance includes accrued vacation and sick time.
The clerk and auditor's one-page salary and benefits agreements call for 45 days vacation, 12 days sick leave and two days personal leave.
They allow for "at time of separation: payment of all accumulated vacation and sick leave."
The auditor is entitled also to an $800 a month car allowance, the clerk to either the allowance or a city-provided vehicle.
Both receive a $200 a month cell phone allowance and "reimbursement of reasonable expenses."
The salary and benefits of City Manager Hernandez, appointed by Mayor Manny Diaz and confirmed by commissioners, are also laid out in a one-page agreement.
His makes no mention of severance but sets out his $220,000 annual salary, 38 days of vacation and 12 days of sick leave.
It provides for a $200 a month cellular phone allowance, an $8,000 a year car allowance and "reimbursement of reasonable expenses."
Allowing 45 days of vacation a year is "absolutely, unquestionably unconscionable," Mr. Sarnoff said. The contracts "need to pattern what the private sector would get."
He has submitted sample contracts to the city attorney's office in hopes of "trying to get the ball rolling."