2006.11.21_TC_Minutes_Special (3)Q
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TOWN MEETING
FOR THE TOWN OF HIGHLAND BEACH
SPECIAL SESSION
NEIL MAIORINO VS. TOWN OF HIGHLAND BEACH
Taken before Charlotte Orcutt, Registered
Professional Reporter and Notary Public in and for
the State of Florida at Large.
3614 South Ocean Drive
Highland Beach, Florida
Tuesday, November 21, 2006
2:40 p.m.
PRESENT:
Mayor Harold Hagelman
Vice Mayor Joseph Asselta
Commissioner Jim Newill
Commissioner Miriam Zwick
Commissioner Rachael Scala-Pisstone
Thomas Sliney, Town Attorney
Dale Sugerman, Town Manager
Larry Corman, Esq.
George P. Roberts, Esq.
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MR. SLINEY: I reviewed with you as to session
number one what the ground rules are. I'm not
going to go through that again. I don't think
that's necessary. I do think we need to have a
role call for session number two. This is in
regard to attorney/client private session in the
case of Neil Maiorino vs. The Town of Highland
Beach. Doris, would you call the roll?
MS. TRINLEY: Commissioner Scala-Pistone?
COMMISSIONER SCALA -PISTONS: Here.
MS. TRINLEY: Commissioner Zwick?
COMMISSIONER ZWICK: Here.
MS. TRINLEY: Commissioner Newill?
COMMISSIONER NEWILL: Present.
MS. TRINLEY: Vice Mayor Asselta?
VICE MAYOR ASSELTA: Here.
MS. TRINLEY: Mayor Hagelman?
MAYOR HAGELMAN:
MR. SLINEY: I would estimate that this
session will last a half hour perhaps, maybe a
little more. And the attendees are the town
commission members and town manager, Mr. Roberts,
myself and Mr. Corman. I think we're ready to go
into the private session now.
I would suggest we do the same thing we did
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before, have Mr. Roberts kind of set the scene and
give the status of the case.
MR. ROBERTS: Commissioners and Mr. Mayor,
this is the claim filed by Neil Maiorino against
the Town of Highland Beach, Glen Goss in his
official capacity as chief of police and
individually, Sergeant Mitchell Rieger
individually. This law was filed around October --
let's see, October 20, 2006. The attorney
representing the plaintiff in this case, who is a
police officer in the Town of Highland Beach Police
Department is Mr. Willie Jones. In the complaint,
much like the others that he has filed, the
complaint seeks relief for a violation of the
Florida Constitution and claims against the
individuals, whom I also represent, Chief Goss and
Sergeant Rieger for libel and slander, slander per
se and libel per se. In essence, the claim against
the town involves a dispute, again claiming that
what has occurred stigmatizes him, interferes with
his liberty interest, and implicitly labels the
plaintiff as a sick leave abuser and liar. It goes
forward with, however, on the factual allegations.
It deals with his selection, or in the real matter,
his nonselection to the position of sergeant in the
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police department. From our investigation of this
complaint, what has occurred is that Mr. Maiorino
is an officer with the police department. He put
in and took the sergeant's test and completed the
application. There were three sergeant positions
or four sergeant positions?
MR. SUGERMAN: Three available.
MR. ROBERTS: Three available positions, and
there were four people that applied? Anyway.
MR. SUGERMAN: There may have been six.
MR. ROBERTS: Six that applied, the tests were
taken, the people were rated, and the chief of
police is the person who recommends who gets
appointed and then the town manager appoints them,
as being the person that hires and fires. Two
individuals were selected, and the third position
was open, and the chief of police determined that
he wanted to, on August 28th of 2006, that he
wanted to select and recruit someone for that
position outside of the department, in essence
saying I'm not going to promote Maiorino to that
position.
After that occurred, that decision was reached
on September 20, 2006, Maiorino filed a union
grievance, which he is entitled to do under the
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union contract. He subsequently filed another
grievance on September 27, 2006, and that grievance
follows, again as we've just discussed before,
follows a proceeding of what you do, and it goes
first to the town --
MR. SUGERMAN: Police chief.
MR. ROBERTS: Police chief, and the police
chief says no, I'm sticking with what I'm doing.
Then it goes to the town manager. And if there is
not an effective resolution of that, then there is
the selection of an arbitrator. On October 20,
2006 the grievance was denied by the town manager.
On October 27, 2006 -- well, stepping back,
October 20, 2006 the grievance was denied by the
town manager. Well, that just happens to be the
date the lawsuit was filed, okay. So if you want
to know why the lawsuit was filed, now you know.
It's because the town manager says no, I'm going to
uphold the chief's decision.
On October 27, 2006, a week after the lawsuit
is prepared, the union requests arbitration of the
decision on behalf of the member, Mr. Maiorino.
The process is ongoing to select an arbitrator, and
the arbitrator will then hold a hearing on this
decision. Now, what is the basis? In the
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agreement -- actually, we even have, and I don't
know that this is confidential, frankly, the union
arbitration.
MR. SUGERMAN: It is not. In my opinion it's
not.
MR. ROBERTS: The union takes the position,
and interesting reading from the grievance filed by
the union representative on or about
September 27th. It was received October 12th. It
grieves the fact that Officer Maiorino has not been
promoted to the position, and that the town has, as
of September 27, 2006 posted on its Web site a
position of sergeant. The union agreement provides
in article ten nothing in this agreement shall
prohibit the town from hiring an outside applicant
for any position if in the sole discretion of the
hiring authority no employee applicant possesses
the necessary qualifications, skills and experience
for the position. All selection decisions made
under this article shall be made at the sole
discretion of management, the sole discretion of
management. Management may, in its sole
discretion, consider criteria such as length of
service within the department, years of law
enforcement, past commendations and/or reprimands,
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past successful supervisory experience in the
department or elsewhere, and vision for the future
of the department when making promotional
decisions.
That provision says that the town management,
being the chief and the town manager, have the sole
discretion in determining who should be promoted.
It doesn't say the highest guy on the list. It
doesn't say the longest guy here. It says they
have the discretion to decide who the best
candidate is. And if they decide that Mr. Maiorino'
is not the best candidate, they have the position.
Now, the union takes the position that what
I've just read to you says if my guy has been here
the longest and has the highest score, he gets
promoted. It's not what the provision says. It's
written right in their grievance exactly what it
says right out of the contract. So where are we?
Well, one, this is another lawsuit that is
filed to try to hinder, slam and impact the
procedure that's already in place. The procedure
that's already in place is the union contract
grievance. If you go to an arbitrator, each side
will be represented by counsel, each side will
present their positions, the arbitrator will make a
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decision, and under the contract, unless there's
some very unusual situation that occurs that rarely
happens, such as somebody being biased and having
some interest not disclosed, that arbitrator's
decision is final, okay. That's why you have it,
as I said before, that's why you have a union
contract. One of the things that they give up for
the benefits that they have is the right to go to
court over this, the right to file lawsuits over
this because this is an administrative proceeding.
The town agrees to it, the union agrees to it.
Nowhere in that contract does it say oh, if I don't
like what the arbitrator says that I get to file a
lawsuit. What Mr. Maiorino has done by filing this
lawsuit has violated essentially the contract.
Now, is there a remedy for that? Probably not
because the courts say hey, your remedy is that
we'll dismiss the lawsuit.
Now, I can't get it dismissed now again
because, one, a motion to dismiss has been filed
because, one, it doesn't state a claim; two, he
really is complaining about things that are covered
by arbitration, but under the procedures that are
available under Florida law, what you do is if the
court doesn't dismiss it like that, you respond to
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it, you bring up the fact by an evidentiary fact
that in fact there is a union contract, and that
the proceeding is ongoing. Whether the proceeding
is ongoing or not, that's his sole remedy, and
that's what the contract says, and once the court
sees the contract, they're done. It's over, okay.
Maiorino's remedy for promotion is governed by this
contract. This contract gives the town manager and
the chief the sole discretion in that decision.
Now, what has gone into that decision? Well,
I don't know what's going into the decision because
that was a decision by the manager, but that will
come out in the proceeding. That will be apart of
the arbitration, but I can tell you that having
been provided records, one of the reasons is that
Mr. Maiorino has been the subject of no less than
four Internal Affairs investigations while with the
Town of Highland Beach, one in December of '99, one
in June of 2002, one in December of 2002, one in
April of 2003, and one in April of 2005.
MAYOR HAGELMAN: Were they all dismissed?
MR. ROBERTS: No. In the one of December of
2002 there were eight charges, four were sustained.
He received a five-day suspense. In the one of
June of 2002, it was sustained that he had conduct
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unbecoming an officer and made derogatory remarks.
In April of 2003 he was found to have violated
radio protocol and got a counselling memo, which is
essentially a discipline, but it's not an internal
affairs investigation. In the one in April of 2005
he was charged with the use of excessive force and
conduct unbecoming, and the excessive force was
unfounded, but the conduct unbecoming was not
sustained.
When you deal with Internal Affairs
investigations, there's a protocol of what happens.
One is the first thing is exonerated. That means
the investigation says it didn't happen. The next
thing is it's unfounded. That is a little bit less
than that. It says we can't prove it, so we're not
going to do anything. The next thing is not
sustained. That's kind of yeah, it's there, but we
really can't fully prove it, and then there's
sustained, you did it. So a lot of it depends upon
what the finding is. It's just not you're guilty,
you're not guilt because a lot of these things
again reflect the rights of the individual officer.
But whether it's sustained or not, depending upon
the ruling, it is something that then be considered
in that decision in the contract. Investigations
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is one thing to be considered. And when you look
at this record here, if I was sitting in that
position, I would certainly take into consideration
if you're looking to promote someone to a sergeant,
what their past history has been. And if you have
someone who doesn't necessarily agree with it and
you look at the investigations, that's someone
frankly that you really don't want to be in charge
because they have that sort of record. That's one
of the factors and decisions, but once again, that
proceeding is ongoing, and those charges, and if
the rationale behind the decision is something that
can be brought up in the arbitrator's proceeding,
whether the arbitrator considers that or not is
another matter because the arbitrator is bound upon
interpreting what the union contract is.
This case is not going to decide that
proceeding. There's nothing in here which can stop
that proceeding, nothing in here which can in a
direct fashion impact the proceeding, and neither
can this Commission, frankly, either, because the
Commission can't stop the proceeding from
proceeding as well if it's elected, and it has been
elected. So that proceeding, the arbitration is
going to decide the issue. So candidly, as Vice
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Mayor Asselta said, there's really nothing to
decide here. Unless you want to waive the contract
or provisions here and say oh, we're just going to
change the town manager's decision. Now, if you
want to do that, then as I said before, you need to
look at what the charter provides as to whether you
can change the town manager's decision that has
already been made that is now subject to the union
grievance.
COMMISSIONER NEWILL: For the record, I didn't
hear the four for 2000. You started, you said
2000, then you went to the next year and gave us
individually what they were, but you didn't give
us --
MR. ROBERTS: In 2002 there were eight charges
and four were sustained, and I didn't specify what
any of them were, although I could find them out if
you want.
COMMISSIONER NEWILL: If you're going to point
them out for the other years, I think it's
pertinent what those were.
COMMISSIONER SCALA -PISTONS: May I ask how
long our officer has been in our town working for
us?
MR. SUGERMAN: I don't recall off the top of
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my head. I'm sorry.
COMMISSIONER ZWICK: May I ask our attorneys,
while Mr. Roberts is busy. In part of the charges,
I don't know if this can come out. If we're not
allowed to know, please say so. The charge is
slander per se and libel per se. Now, if I
remember correctly in journalism, libel was for
written, slander was for spoken. So he has
produced evidence of both written and oral
defamation or something like that? Is that part of
his case?
MR. CORMAN: He hasn't produced evidence yet.
He's alleged that there have been written and
verbal communications about him that are false and
ruined his reputation.
COMMISSIONER ZWICK: That's why he used both
terms?
MR. CORMAN: Right.
MR. ROBERTS: The investigation on December 9,
2002 was conducted, and the -- through the offices
of Chief Cervasio at the time, and on December 9,
2002 Town Manager Saag wrote a report and found in
conclusion that charge one was conduct unbecoming.
It was sustained. Charge two, courteous behavior
set aside. Charge three, failure to comply with a
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lawful order, set aside. Charge four, failure to
comply with the order of a supervisor, set aside.
Charge five, act which endangers, sustained.
Charge six, failure to obey work-related order set
aside. Charge seven, conduct unbecoming,
sustained. Charge eight, failure to comply with
department rules, sustained as a result of charge
B-1, sustained. There was a ten-day suspension
without pay recommended by the chief, but the town
manager imposed a five-day suspension without pay
related to those charges that have been sustained.
The remaining five days is a proposed suspension
not imposed.
MAYOR HAGELMAN: So he was fined for five
days; is that correct.
MR. ROBERTS: Correct. Also, the manager said
given that this is your third disciplinary action
related to conduct unbecoming an officer of the
town, and that you have shown poor judgment in each
of these instances, I am officially cautioning you
against committing any future substantiated
violations of the police department or town rules
or regulations. Any future substantiated
violations will be grounds for termination of your
employment with the town. That was in December of
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2002.
VICE MAYOR ASSELTA: While you have that, who
was the complainant against the police officer? I
know you said Cervasio did the finding, but who was
the complainant? Who filed the complaints against
him?
MR. ROBERTS: Charge against you outlined
stems from an April 24, 2002 telephone conversation
you had with Sergeant Rieger's wife, Denise.
VICE MAYOR ASSELTA: You don't have to say
anymore.
COMMISSIONER SCALA-PISTONE: I agree.
VICE MAYOR ASSELTA: There's a lot of history
that you did not bring out in that little summary
that most of us do know.
MR. ROBERTS: That was the decision of the
town manager at the time.
VICE MAYOR ASSELTA: And the town manager left
under circumstances that I will question.
COMMISSIONER SCALA-PISTONE: May I ask, in
this performance, I guess it's called our
confessional, the opportunities for access for
getting -- for becoming promoted, isn't there a
specific requirement at least two years that the
individual has to be a member of our police force
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for at least two years? I have it right in front
of me.
MR. SUGERMAN: That's correct.
COMMISSIONER SCALA-PISTONE: So this young
man, whoever, has not been on our police for two
years.
MR. SUGERMAN: No. I think Officer Maiorino
has been on for a substantial number of years.
COMMISSIONER SCALA -PISTONS: I'm not talking
about Officer Maiorino. I'm talking about --
didn't we just hear that Chief Goss was going to
hire another human and that he is going to hire
someone that has not been working with our town for
at least two years, and these are our requirements?
MR. SUGERMAN: Chief Goss does not do the
hiring. The town manager does the hiring.
COMMISSIONER SCALA-PISTONE: Then I'm asking
that question to you, Dale.
MR. SUGERMAN: Then I'll answer it. Chief
Goss recommends, the town manager hires. There is
nothing in our rules and regulations that prohibits
our hiring from the outside. Mr. Roberts already
read the rule on that. The rule you're referring
to is the rule of promotion.
COMMISSIONER SCALA-PISTONE: Isn't this a
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promotional position?
MR. SUGERMAN: It is not.
MAYOR HAGELMAN: In other words, you're
saying, Town Manager, that within your rights you
could bring in a sergeant from the outside to work
in our department here?
MR. SUGERMAN: Actually, what I'm suggesting
is it says so in the contract between FOP and the
Town of Highland Beach. I would just be acting
under the terms and provisions of the collective
bargaining agreement. Mr. Roberts has already
covered that.
MR. ROBERTS: The other thing, to address what
you said, article ten of the contract entitled
Promotional Opportunity, and it says it is the
policy of the town to consider its own employees
for promotional opportunities in employment prior
to considering outside applicants.
COMMISSIONER SCALA-PISTONE: Exactly.
MR. ROBERTS: And if you're going to consider
town employees, you can only consider those who
have been there at least two years with the
department.
COMMISSIONER SCALA-PISTONE: Exactly.
MR. ROBERTS: That doesn't mean, obviously it
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would be impossible to hire someone from the
outside unless they had two years experience
because once they're hired, then they'd have two
years until they get promoted.
The distinction here is you have a position to
fill, that being one of sergeant. You have two
options. One, the contract says you have to first
consider persons who are in the department, and
those persons you consider have to be here two
years, and have to go through this process.
However, that does not preclude you from, after
you've considered that, to hire someone from the
outside if you deem in your sole discretion that
the persons who you have considered are not well
qualified for that position.
MR. SUGERMAN: Excuse me, Mr. Roberts. If the
town manager decides in his sole discretion, not
the Town Commission.
MR. ROBERTS: Sure. The town manager in his
sole discretion. Management decides in its sole
discretion that those persons within that they have
considered first are not the best persons for that
position, then the town manager has the ability to
hire someone from outside to fill that position,
and that's essentially what is being done in this
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case. Mr. Maiorino has been considered, and he has
not been considered favorably to fill that
position, so therefore the town manager has decided
to go outside --
MR. SUGERMAN: Has not decided.
MR. ROBERTS: Oh, has not.
MR. SUGERMAN: Is considering.
MR. ROBERTS: Considering.
COMMISSIONER SCALA-PISTONE: Considering going!
outside.
MAYOR HAGELMAN: Town Manager, you and I have
had this discussion before, and I did make mention
that I would bring it up, and at that time you were
interviewing or considering interviewing people
from the outside be brought in for a sergeant's
position in the Town of Highland Beach. And I have
stressed to you, and I have made the statement I
thought that would be unwise to do because of what
it would do to the personnel on the police
department here. And you have said to me well,
this is in my discretion, and I do not disagree
with that. It is within your discretion. But in
so doing, Town Manager, the disruption that it
might cause in this department I think would be
something worthy to be considered. And you had
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made mention well, it will only take a number of
two or three people that would object to it or find
fault with it, and I absolutely disagree with that.
I mean, I've worked on that side of the fence, and
if I know that I would be overstepped or overlooked
because for whatever given reason that the town
manager felt I wasn't capable of doing it and they
brought someone else in, I would be really upset
about it.
COMMISSIONER SCALA-PISTONE: The morale.
MAYOR HAGELMAN: The morale. It's killing --
it's hurting our department. We see things like
that happening. We have people leaving here like
I've never seen leave before, and I'm very
discouraged with it, to be perfectly honest with
you. If this was a decision that was made by the
chief and yourself, I have to be perfectly honest
with you, I'm not pleased with it at all.
COMMISSIONER NEWILL: I think also community
reaction.
COMMISSIONER SCALA-PISTONE: In addition, we
were all at the bargaining meeting prior to
ratifying the contract. Chief Goss is new on this,
you know, in our town, and we questioned him quite
specifically about the fact that would he continue
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to use or make an effort to use those police
officers that, you know, have been part of our
police community for so many years. And by the
way, that was suggested at one point with the
attorney, our attorney, our collective bargaining
attorney who came and said it is very important
that you understand that they don't trust that the
police officers, you know, in the union do not
trust, there's not a trust there, and we have to
develop a trust again. And I remember him saying
that the reason, you know, that we should use is by
keeping our promises and keeping our thought
patterns so that, you know, these other officers
could be chosen for, you know, this position, and
it had to do with these sergeant positions.
MR. SUGERMAN: Mr. Mayor, I'd like to follow
up on your comment, and I agree with you, you have
made it very clear to me in no uncertain terms, as
have other members of the Commission, that if, as
town manager, I determine to invoke my right and
responsibility under the bargaining agreement and
do hire somebody from the outside for the position
of sergeant, it will most likely cost me my job as
town manager. You have made that clear to me, as
have others, and I understand that.
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VICE MAYOR ASSELTA: I think that's wrong. If
that happened, Town Manager, somebody acted out of
their authority on this board, I'm telling you that
right now. That's sickening to hear that.
MR. SUGERMAN: I'm confirming the conversation
that the Mayor and I have had on this.
MAYOR HAGELMAN: That conversation with you is
the people in our town would be up in arms about
what's taking place in our town, and they might,
yes, they might go ahead and say look, we'd better
look into this matter. And if it comes down to the
point, no, do I want to see you go? No way. We've
had a good relationship. But on the other hand, I
have the town's interest as does everybody else.
When you go ahead and you appoint somebody from the
outside, saying to this town there's nobody on our
police department that's qualified to take the
position of sergeant, this is absolutely wrong, and
I cannot justify that at all.
COMMISSIONER NEWILL: Town Manager, for the
second time in my two-year term here, I will ask
you the question, will you please substantiate that
I was not one of the commissioners that said that
to you?
MR. SUGERMAN: You were not.
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COMMISSIONER NEWILL: Last time you had to
think about it a little bit.
VICE MAYOR ASSELTA: Is everyone finished?
COMMISSIONER SCALA -PISTONS: What did you say?
I didn't hear it.
MAYOR HAGELMAN: Go ahead, Vice Mavor. You
speak.
COMMISSIONER SCALA -PISTONS: What did you ask
him? You wanted to be one of the what?
COMMISSIONER NEWILL: No. I asked him once
before in my two years to clarify that I was not
one of the commissioners that approached him on
that.
COMMISSIONER SCALA-PISTONE: And I'm not one
of the commissioners who approached him. That's
what I thought you said.
COMMISSIONER ZWICK: I don't believe this. So
childish.
VICE MAYOR ASSELTA: Let me get back to the
facts here. Rusty, when you presented the position
of the lawsuit and everything else, until
Commissioner Scala-Pistone asked you about a
subject, is the first time you went back and
referred to article ten or section ten, whatever
it's called. What's it called?
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MR. ROBERTS: Article ten.
VICE MAYOR ASSELTA: Article ten. Now, my
recollection of article ten, it was read and it was
read, I believe, correctly that -- would you read
that again for us? I'm concerned as to why you
left that out at the beginning. Read it again.
MR. ROBERTS: What I read first was from the
union grievance, which is probably not totally
word-for-word accurate, okay.
VICE MAYOR ASSELTA: Read that part of article
ten.
MR. ROBERTS: The contract, the actual written
contract. You want to read, article ten,
promotional opportunity. It is the policy of the
town to consider its own employees for promotional
opportunities in employment prior to considering
outside applicants. Paragraph two. No employee
shall be eligible to sit for a promotional
examination unless the employee has completed two
years of service with the Highland Beach Police
Department. Then going over to paragraph five, in
the interim there's a score sheet for employment.
Paragraph five, the town manager, following a
recommendation from the police chief, will appoint
from the promotional list. The promotional list is
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good for two years. Paragraph six. Nothing in
this agreement shall prohibit the town from hiring
an outside applicant for any position if in the
sole discretion of the hiring authority no employee
applicant possesses the necessary qualifications,
credentials, skills and experience for the
position. All selections -- decision made under
this article shall be made at the sole discretion
of management. Management may, in the sole
discretion, consider criteria such as length of
service within the department, years in law
enforcement, past commendation and/or reprimands,
past successful supervisory experience in the
department or elsewhere, and vision for the future
of the department when making a promotional
decision.
VICE MAYOR ASSELTA: Thank you. Now, with
that also I did not hear about the qualifications
of Officer Maiorino. My understanding is -- and
the process that was involved. My understanding
was that he received the highest score of all
applicants from the Town of Highland Beach Police
Officers. I also understand that he was examined.
As a result of it, he passed that phase, and then
was many examined by six officers?
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MR. SUGERMAN: Five officers in an oral
interview.
VICE MAYOR ASSELTA: Five officers. I don't
know if they were chiefs. I don't know their rank,
but I believe they were all officers, lieutenant or
higher from other departments --
MR. SUGERMAN: Sergeants.
VICE MAYOR ASSELTA: -- to advise on the
selection. The combined score from the advisory
board of the other officers, which took into
consideration everything that is being mentioned,
still found Officer Maiorino had the highest score.
Now, when you say -- that wasn't mentioned. Now,
here's the thing. We will look inside. If you do
not find anyone who has the necessary
qualifications or skills. Obviously five officers
from other departments found that skills existed to
give him such a high score. He scored high enough
on the written exam to demonstrate that he did have
the skills.
When we say an arbitrator, we have the right
to decide, I don't deny that, and I discussed this
on a number of occasions with the town manager, and
I still don't know which way he's going to go and
what's going to happen. And I've been asked my own
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opinion of this particular officer, and I'll be
frank, I said I probably would not have promoted
him. But I'm just taking the advocate's position
of what an arbitrator would look at and then what's
in the record. And then when you say we go to the
record, and I had a reason for asking you where did
the complaints come from because if you look back
at those years, 2002, 2003 and 2004, you'll find
quite a number of reprimands being filed against
the entire police department by Sergeant Rieger or
Lieutenant -- I forget his name now.
MAYOR HAGELMAN: Holland.
VICE MAYOR ASSELTA: Yeah, Holland, and we had
the chief. Now, let's be realistic in that we had
a chief that was chief in name only, really a
totally ineffective chief. The department was run
by Saag through Holland and Rieger. We also found
out, I found out, and they've been brushed aside, a
number of false reports being filed against police
officers by the management, the sergeant and the
lieutenant. We also had examples of police
officers having their reports rewritten by the
lieutenant, which is illegal. We had so many
things going on back in that period of time that
when you use that as a cite for reprimanding a
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police officer, that has to be taken in the total
context of what was happening in that period of
time.
I would hope that when Maiorino has his
arbitration that he'll have somebody skillful
enough to bring out everything and present his
whole picture because -- and the reason I said I
didn't think he should be promoted because I
thought there were other people here, and
unfortunately one has taken retirement, another one
wouldn't take the test, which kind of bothered me
and shows something else is in existence. I did
make a suggestion, not a mandatory thing, to the
chief that I would hold off any promotion, hold it
open. There's no crisis that we need to fill the
sergeant's shot, and go ahead and hold an exam next
year and then see who comes up on the list so we
don't have to go outside the town. My concern is
that paragraph. I know in sole discretion. I also
know sole discretion comes into play only if you do
not find anyone who does not possess the basis
skills that are there, and that is a question that
is open. And knowing the background and knowing
how it could be presented, I also made this known
to the town manager if I was his lawyer I damn well
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would prevail on it. But I'm just putting that out
for consideration.
MR. ROBERTS: And that's what will be possibly
decided in the arbitration proceeding, but it won't
be decided in this lawsuit.
VICE MAYOR ASSELTA: I'm aware of that. But I
thought that should have been brought out. You
know, we really wanted to hear both sides and, you
know, until I brought it out we didn't hear both
sides, and that's a concern to me.
MR. ROBERTS: Well, I appreciate that, but
that won't necessarily be part of this lawsuit
because it's covered by, as you indicated, the
arbitration.
VICE MAYOR ASSELTA: No, I'm aware where we're
going. We've got to go to the arbitration, and I
also believe that this hearing was not necessary,
or this meeting was not necessary, so be it. We
discussed it. There's really nothing we can do.
But the concerns of fairness to the people in the
town are of great concern because I have to say
that the integrity of our police department, you
know, is tested on a regular basis, and you have a
lot of people in this town that know a lot of the
police officers and know what they've done. And as
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I said, we can't tell the town manager what to do,
and I wouldn't attempt to, but hopefully he takes
everything into consideration and comes up with any
conclusion he comes up with. I'm not threatening
you in any way. I just want to make that clear.
MR. CORMAN: Just a point of law, and I don't
know if Mr. Jones is going to ultimately properly
frame this action. Ironically, to the extent that
Maiorino's claiming that he's been discriminated
against on the basis of his age, the one action
where he needed to file an EEOC complaint, he has
not done so. He has filed EEOC complaints in two
actions where they're not really proper. This case
would require an EEOC complaint. One has not yet
been filed.
If I was his attorney, what my argument would
be in arbitration is that independent of the
contract, the town remains subject of the federal
and state laws prohibiting discrimination on the
basis of age, and I would assert that I was passed
over because of my age, that would then put the
burden on the town, assuming that the arbitrator
found that that's properly been alleged, it would
put the burden on the town to come up with a
legitimate business reason for why he was passed
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over other than his age. And to the extent that
the town is relying on reprimands that are not
well-founded, or at least one of the commissioners
believes was not well-founded, that could undermine
an argument that there was a legitimate business
reason. The town manager has the right to rely on
the materials that he finds in the personnel file.
So from a legal perspective, the town may well have
a good defense, regardless of whether or not those
prior reprimands are meritorious or not because he
has a right to rely on what he finds in the
personnel files.
VICE MAYOR ASSELTA: Well taken. I have one
question. Before you came here, Dale, and before
this chief, we had another police chief here, and
we had another mayor. It wasn't this mayor. And
we didn't have an appointed town manager, we had an
acting town manager. And at that time I do know
that Mayor Reid wanted Sergeant Rieger fired,
terminated. I know that. He went and other people
went to the chief, what was her name? Chief
Pander. Lu, and Lu said I can't do anything
because all the letters, all the complaints that
were filed against him are more than three years
old and can't be considered.
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Now, I don't know if that's true or not, but
if that's the case, all these complaints appear to
be more than three years old and should not be
considered. And I just bring that up without
having any real knowledge.
MAYOR HAGELMAN: But that's part of his
personnel file.
VICE MAYOR ASSELTA: But they said after so
many years it cannot be used against you.
MAYOR HAGELMAN: Do you know that particular
case?
MR. ROBERTS: I think what you're talking
about is you can't initiate a disciplinary
proceeding against someone after a certain period
of time. I think that probably is tied in with the
policeman's bill of rights. It's like a statute of
limitations for a crime. You commit a crime this
year. You can't be charged with it four years
later because it tolled, but that's different from
the fact in making a decision about promotion.
You're not disciplining someone in that instance.
What you're considering is whether that person is
the best qualified to be in a supervisory position
on your management team in your department, and you
can consider all facets of the thing. You can
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consider, like it says in the collective bargaining
agreement, you can consider his past supervisory
experience. You can look back at what he's done in
other departments. I think Maiorino has past
police experience.
VICE MAYOR ASSELTA: He was a former chief and
a former sergeant.
MR. ROBERTS: In another department. He has
retired from those departments, too. So you can
consider that, too. Similarly, if I was in that
position and in considering that experience, I'd
also consider what his disciplinary record is from
his past experience, too. All of that is
information that you can consider because you're
not disciplining the person. You're not taking
action against him. You're deciding whether he
should be elevated, and there's a difference
between the two. You can consider his grades in
high school in doing that, too. You can consider
all his past relevant experience because you're not
hurting him. You're only trying to help him, but
in doing so you have to consider your interests as
well.
MAYOR HAGELMAN: Was one of the complaints the
fact that he was instrumental in starting a union
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in this town.
MR. ROBERTS: Well, as I said to Commissioner
Newill, you can put anything you want in that
complaint when you put it in there. If he wants to
bring that out, he can do that in the arbitration
proceeding. Typically arbitration proceedings are
somewhat informal with the rules of law tenets,
although I've never conducted one. You're getting
a professional arbitrator generally, and they set
their own rules, regulations and guidelines, and
essentially they will listen to anything that
somebody wants to say. You know, whether that is
involved too, that's the sort of things you can
bring out in arbitration.
MR. CORMAN: The standard line in arbitrations
are I'll let the evidence in and I'll accord it the
weigh I think it's entitled.
MR. ROBERTS: Right. They're not going to
prevent him from saying that stuff. Whether that
makes a difference or not is another story, whether
it means anything to the proceedings or not.
MAYOR HAGELMAN: So at this point we're just
waiting now for the arbitrator to make a decision?
MR. ROBERTS: Well, that proceeding has just
been initiated. I'm not so sure that an arbitrator
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has even been selected.
MR. SUGERMAN: Correct.
MR. ROBERTS: You've got to select one, and
then you've got to set a hearing.
MR. CORMAN: It's more than just that. He
filed a lawsuit that Mr. Roberts needs to deal
with.
MR. ROBERTS: We're dealing with the lawsuit,
but as I said before at the outset, this lawsuit is
not going to impact or change that proceeding from
going forward. It's going to go forward unless, of
course, Mr. Maiorino decides to dismiss it. But if
he dismissed it, that still doesn't change anything
because that's his remedy. That's his only remedy.
The lawsuit is not his remedy.
MAYOR HAGELMAN: Any other questions?
VICE MAYOR ASSELTA: One question, yeah. So
what's your procedure on the lawsuit? Are you
going to move --
MR. ROBERTS: I've already moved to dismiss
it.
VICE MAYOR ASSELTA: On all the grounds?
MR. ROBERTS: All the grounds.
VICE MAYOR ASSELTA: All right.
MR. ROBERTS: But there again, technicalities
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about service and things of that nature.
MR. SUGERMAN: If I can ask, it's likely some
of these things may take six to nine months, 12
months to play out in the lawsuits.
MAYOR HAGELMAN: So then at this particular
point, are we going to consider putting anybody in
that position until the lawsuit is settled or what?
MR. SUGERMAN: With all due represent, Mayor,
the Commission does not put people in that
position.
MAYOR HAGELMAN: In other words, you could
rule to have someone in there yourself?
MR. SUGERMAN: I will follow the terms and
conditions of the collective bargaining agreement.
MAYOR HAGELMAN: Again, I have to tell you I
think that would be irreparable damage to the
people of Highland Beach if you did do that.
MR. SUGERMAN: You have continued to make your
position very clear to me. I understand it
succinctly.
MAYOR HAGELMAN: Okay. Anybody else have
anything else to say?
COMMISSIONER NEWILL: I move to adjourn.
MR. SUGERMAN: Would any other Commissioners
like to go on the record about that matter?
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COMMISSIONER ZWICK: No, sir.
VICE MAYOR ASSELTA: I understand the
difference between policy and town manager's
prerogatives. You know my position.
COMMISSIONER NEWILL: You'll know my feelings
about what you've done in March.
MAYOR HAGELMAN: Anybody else care to say
anything?
MR. SUGERMAN: I was going to say go away
because we have to come back into public session.
MAYOR HAGELMAN: Let's bring it back so we can
adjourn. If there's no other matter to be subject
to regarding the Neil Maiorino case - I'm sorry?
MR. SUGERMAN: Announce the time that we've
come back into session.
MAYOR HAGELMAN: The session is completed at
3:35 p.m. on this date. If there is no other
mentioning or anything else to be discussed, I
think it's a motion, I would call for a dismissal
at this particular point.
MR. SUGERMAN: Move to adjourn.
COMMISSIONER NEWILL: Move to adjourn.
COMMISSIONER SCALA -PISTONS: Second.
MAYOR HAGELMAN: So moved.
(Thereupon, at 3:33 p.m. the meeting was
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adjourned.)
STATE OF FLORIDA )
ss
COUNTY OF PALM BEACH )
I, CHARLOTTE ORCUTT, Registered
Professional Reporter, do hereby certify:
That said proceedings were taken before me
at the time and place therein set forth and were
taken down by me in shorthand and thereafter
transcribed into typewriting under my direction and
supervision;
I further certify that I am neither counsel
for, nor related to, any party to said proceedings,
nor in anywise interested in the outcome thereof.
In witness whereof, I have hereunto
subscribed my name.
DATED this 5th of December, 2006.
CHARLOTTE ORCUTT
Registered Professional Reporter
Notary Public -State of Florida
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addition 20:21
address 17:13
adjourn 36:23
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adjourned 38:1
administrative
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advisory 26:9
advocate's 27:3
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allowed 13:5
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Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company
•
•
•
22:1 23:3,19
24:2,10 25:17
26:3,8 27:13
29:6,15 31:13
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attorney/client
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13:14
Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company
N
•
•
•
community 20:19
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complainant 15:3
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complaint 3:12,14
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comply 13:25
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concerns 29:20
conclusion 13:23
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continue 20:25
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contract 5:1 7:18
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counsel 7:24
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course 35:12
court 8:9,25 9:5
courteous 13:24
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crime 32:17,17
crisis 28:15
criteria 6:23
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decide 7:10,11
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decisions 6:19 7:4
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21:8,15,22
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elsewhere 7:2
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employee 6:17
24:17,19 25:4
employees 17:16
17:21 24:15
Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company
3
•
•
•
employment
14:25 17:17
24:16,22
endangers 14:3
enforcement 6:25
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exactly 7:17 17:19
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excessive 10:6,7
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Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company
0
•
•
17:22 18:3,5,6,7
18:9,10,14,21
19:11,16,17,20
20:13,17 21:2,9
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22:6,14 26:19
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28:8 30:2,4,11
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31:7,10,11,20
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Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company
11
•
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Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company
0
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Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company
0
•
order 14:1,2,4
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17:13 21:13,19
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Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company
•
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2003 9:20 10:2
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2004 27:8
2005 9:20 10:5
2006 1:13 3:9 4:18
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Klein, Bury, Reif, Applebaum, & Associates
A U.S. Legal Support Company