1998.11.17_TC_Minutes_Executive SessionPUBLIC NOTICE
TOWN OF HIGHLAND BEACH, FLORIDA
ATTORNEY -CLIENT PRIVATE SESSION
AS PROVIDED BY FLORIDA STATUTES 286.011(8), THE TOWN COMMISSION OF THE
TOWN OF HIGHLAND BEACH, FLORIDA, WILL MEET IN ATTORNEY -CLIENT PRIVATE
SESSION ON TUESDAY, NOVEMBER 17, 1998 AT 9:30 A.M. TO DISCUSS THE
FOLLOWING:
SETTLEMENT NEGOTIATIONS AND STRATEGY RELATED TO LITIGATION
PENDING IN THE CASE OF WILLIAM 1. HOWE.
P. Dillon
,R Town Clerk
Posted: November 16, 1998
HODGSON RUSS
ANDREWS
WOODS &
GOODYEARLLP
ATTORNEYS AT LAW
January 5, 1999
Via Hand Delivery
Ms. Doris Trinley, Acting Town Manager
Town of Highland Beach
3614 South Ocean Boulevard
Highland Beach, FL 33487
Dear Doris:
2000 Glades Road
Albany
Suite 400
Boca Raton
Boca Raton, FL 33431-8599
Buffalo
561-394-0500 BmA RATON
561-736-2177 PALM BEACH
New York
Partner 954-764-2440 BRowARD
Toronto
EXT: 3028 FAX: 561-394-3862
West Palm Beach
@hodgsonruss.com uTERNET: www.hodgsonruss.com
EMAIL: bocalaw@hodgsonruss.com
Susan K. Baumel, P.A.
Lawrence R Beyer
Larry Corman, P.A.
George F. deClaire
Anthony L. Dutton, P.A.
Jeffrey S. Geller
Richard A. Goetz, P.A.
Michael H. Gora, P.A.
James M. Hankins, P.A.
Paul E. Roman
Re: William J. Howe v. Town of Highland Beach, Florida
Case No. CL 98-003371 AN
Stephanie A. Russo
Elana K. Scoler
Thomas E. Sliney, P.A.
James A. Porter, P.A.
Of Counsel
RESIDENT IN NEW YORK
Paul R. Comeau
Mark S. Klein
Stephen M. Newman
Enclosed is the original transcript of the Private Attorney/Client Executive
Session held by the Town Commission of Highland Beach in connection with the above -
referenced matter. As we discussed, this case has effectively been settled, and, accordingly,
this transcript is no longer entitled to be exempt from Florida's public record laws.
Accordingly, any member of the public who requests the opportunity to review this transcript
should be provided access to it.
Thank you for your attention to and consideration of this matter. If you have
any questions, please call.
Very truly yours,
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR, LLP
,l
G..
Larry orman, P.A.
LC:sls
Enclosures
cc: All Members, Town Commission
Thomas E. Sliney, Esquire
FLADOCS:26007_1 (K21701)
12577.0042
A Registered Limited Liability Partnership Including Professional Associations
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HIGHLAND BEACH
TOWN COMMISSION MEETING
PRIVATE ATTORNEY/CLIENT EXECUTIVE SESSION
Tuesday, November 17, 1998
S. Ocean Blvd.
9:30 a.m.
ORIGINAL
Appearances:
Mayor Voress
Vice Mayor Reid
Commissioner Augenstein
Commissioner Hill
Commissioner Sorrelli
Town Attorney, Larry Corman
Acting Town Manager, Ms. Trinley
Acting Clerk, Ms. Dillon
Court Reporter
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Thereupon:
MAYOR VORESS: Good morning.
It's a little after 9:30 a.m. on
Tuesday, November 17, 1998. And I called
for this special attorney commission meeting
of the Town Committee of Highland Beach.
Will the Clerk please call the role.
MS. DILLON: Commissioner Augenstein.
COMMISSIONER AUGENSTEIN: Here.
MS. DILLON: Commissioner Hill.
COMMISSIONER HILL: Here.
MS. DILLON: Commissioner Sorrelli.
COMMISSIONER SORREELLI: Here.
MS. DILLON: Vice Mayor Reid.
VICE MAYOR REID: Here.
MS. DILLON: Mayor Voress.
MAYOR VORESS: Here.
The purpose of this meeting is to
consider an offer made by the attorneys of
Sergeant Howe. And this is a session to
determine the understanding from the
attorney about what options the Town
Commission has.
And alternatively, I'll turn to the
attorney at this point in time, the attorney
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Larry Corman.
MR. CORMAN: Thank you very much,
Mayor.
I would suggest at this point that
we're ready to begin discussion and close
the meeting to the public and continue with
the attorney --
MAYOR VORESS: Okay. The meeting is
closed to the public as of this moment.
MS. DILLON: Just a moment, please.
(Thereupon, the executive session was
closed to the public, after which the following
proceedings were heard.)
MR. CORMAN: The reason we're here
today, is I've received a settlement
proposal from the attorneys of Sergeant
Howe. I'm not endorsing this settlement
proposal, I am only complying with my
ethical obligations as the Town's attorney,
to communicate the substance of the proposal
to you.
I'm prepared to discuss, in detail,
what the issues of the case are, what the
factual issues are, what we've determined in
discoveries to date. I have voluminous
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statutory materials with me. I have copies
for all of you. I've got a copy of the
amended complaint and the operative letters
that are the subject matter of this dispute.
And I will talk about it with you in as much
or in as little detail as the Commission
desires.
First, let's pass out the settlement
proposal. Here's a copy for you, Doris.
Chief, I have a copy for you as well.
Now, basically what this lawsuit is
about is that prior to her termination, the
former town manager made the decision to
terminate Sergeant Howe's employment.
Sergeant Howe has taken the position that he
was terminated because he was engaged in
acts that are protected by Florida's
Whistleblower's Statute. And I have copies
of that statute with me.
The Florida's Whistleblower's Statute
prohibits employers from terminating
employees, if the employees are being
terminated because they are reporting
violations of law, rules, regulations that
fall within certain categories that are
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broadened upon by the statute.
And if the Court believes or if the
jury believes - because he has requested a
jury - that his employment was terminated
because he was engaged in protected whistle
blower activities, he would be entitled to
be reinstated to his former position, he
would be entitled to recover the back wages
that he lost as a result of the wrongful
termination and he would be entitled to his
legal fees. He would also be entitled to
interest on all that money. So, it's not
just the back pay, but there's interest
accumulating on that as well.
And typically, when you talk about back
pay, you're talking about fair market value
of the benefits that the employee has been
deprived of in connection with the
employment. So, you get some testimony
about what's the value of a healthcare
packages and things of that nature, some
dollar value gets assigned to it and that
becomes an element of the damages.
We have made it very clear, because the
police department, through both the chief
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and it's individual officers have made it
very clear to us, that reinstating Sergeant
Howe would be detrimental to the
department's morale. So, I know that the
department would be very concerned. And by
the department, I mean, the Chief, who, of
course, is here and can speak for himself,
as well as the meetings that we have had
with the individual officers suggests that
Sergeant Howe being placed back in the
department could be a very adverse
development in terms of officer morale.
Basically in terms of the facts, what
this case really boils down to is two
different views of the world by two
difficulty groups or individuals of people.
In Sergeant Howe's view of the world you
have a department of officers that are not
engaging in professional behavior, that have
engaged in various lapses of compliance with
department rules and regulations.
He claims he has brought these things
to the chief's attention and the chief
doesn't take adequate remedial steps. And
as a result, the department - what Howe will
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depict - is in a state of chaos with,
basically, the officers running wild, doing
whatever they want to do and no one imposing
affective discipline upon them.
The view of the officers is that they
are all extremely experienced and
hard-working officers who are doing that
which needs to be done to keep the Town safe
and that Sergeant Howe invents or
exaggerates or blows -up grievances against
particular officers - blows them out of
proportion, pursues them even when the
alleged victims of the incidents are not
interested in having the complaint pursued,
basically causes as a lot of distrust, anger
among the men at each other, which is
unnecessary.
They have, all of the officers who have
testified in deposition to date have stated,
that the morale problems that existed in the
department were extremely bad when Sergeant
Howe was there, and that the situation has
improved 100 percent since he has departed.
Sergeant Howe would say that's because
now they get to do whatever they want and no
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one is cracking the whip. They would say
everyone's doing their job and they just
don't have anybody that's blowing a bunch of
complaints out of proportion.
Now, I think it's important that we
understand the exact nature of the
complaints. And I've got copies of Sergeant
Howe's amended complaint, which I'm now
going to pass out to each of you. Take one
and pass it down. Doris, a copy for you.
Chief.
Now, Sergeant Howe in his complaint
discusses on the first page, the fact that
he was a police officer hired on January
14th of 1991, promoted to sergeant in July
of 1994. During that time period his
complaint reflects, that he received
positive evaluations, and that's factually
accurate.
And that, again, in his last review in
July of 1997, he had received, again, a
good, above -satisfactory performance review
and was given a 4.5 percent raise. And they
have some other positive comments that were
included in his evaluation set out in his
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complaint.
Now the complaint first identifies
November 22, 1997, in Paragraph 12, as when
he first notified the chief of alleged
misconduct. And that's - the misconduct was
then described in greater detail on Pages 3
and 4. And it's also described and sets
forth in a memo, the second memo attached to
his complaint, which is dated September 22nd
of 1997.
Basically, the genesis of the problem
is reflected by the document that's attached
to the complaint dated, July 19, 1997. And
I would note that that's a date subsequent
to the date of his last evaluation.
I think it's fair to say, that while
there may have been other isolated problems,
this is really when the crescendo of events
started to occur that were creating the
morale problems within the department.
Basically, in July of 1997, Officer
Maiorino was operating under the belief that
Officer Murphy may have taken a photograph
of him while he was in his cruiser. And
Maiorino said that he made have had his head
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leaned down at the moment. Basically, he
was sitting in his patrol car at night and
another patrol car pulled up.
Maiorino was uncertain whether it was a
flash of the headlights or the flash of a
camera going off, but was under the belief
that Murphy, who had pulled up to him in his
car, may have taken a photograph of him.
And Maiorino felt that given the way he was
sitting in his cruiser, it could appear to
someone that he was quote, unquote,
"resting", which I think is a buzz word for
"sleeping". So Maiorino thought Murphy had
a picture of him sleeping in his car.
Now Murphy was upset with Maiorino
because Murphy for years had been providing
limousine service for residents of Highland
Beach, moonlighting. And I understand that
had been properly paper -worked and
registered with the Town, so there is
nothing wrong that Murphy was doing that.
Howe decided that this was a good way
to make money, and he decided he would
compete with Murphy and started doing the
same service in the town, which upset Murphy
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greatly. But they're allowed to compete,
that's the American way, and while Murphy
may not have liked it, he had to live with
that.
Howe went to Maiorino and said to him,
Neil, I want you to drive for me you can
make some extra money. Neil apparently
spoke with certain people, other officers
within the department who warned him - if
you do that Murphy is going to get upset.
Maiorino decided to do it anyway. That was
kind of significant, because Maiorino and
Murphy worked the same shifts. Maiorino
decided to do it anyway and sure enough
Murphy got upset.
So, Maiorino decided that it wasn't
worth Murphy being as upset as he was, so he
stopped doing it. That kind of made Howe
upset, according to Maiorino.
So, Maiorino had this belief that
Murphy may have had a photograph of him, but
he didn't know for a fact whether or not he
did, but he was concerned about it. And I
believe he reported that to the chief, that
he was afraid that Murphy may have taken a
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compromising photograph of him. And he told
the chief he didn't want anything further to
be done, because he didn't have any proof,
he just had his paranoia and suspicion.
Howe somehow learned of this - and my
sense is that the men talk about things.
You know, the town is not ridden with crime
and the officers have time on their hands
when they are not responding to calls.
If you look at the call logs, they
don't get a lot of calls on any given day.
That's a positive thing. And I'm not saying
necessarily - I haven't done a study of this
- I'm not suggesting that we have too many
officers.
Maybe the reason we don't have any
crime - or so little crime, is because we
have so many officers out on the street and
it's serving as a deterrent, which, of
course, is an excellent thing. But the
bottom line is, we don't have a crime
problem in this down, at least not a serious
one.
The officers would tell you that's
proof that they are, in fact, doing their
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job. An argument can be made for that and
another argument can be made that we just
happen to have a lot of law-abiding
citizens, so we have a low level of crime.
The bottom line is, officers have time.
During that time, they talk. Sometimes
their talk is not about police business and
it becomes unproductive. This is probably
one of those topics of discussion - I'm sure
there was a lot of scuttlebutt about Murphy
competing with Howe and Maiorino being
dragged into it and refusing to drive any
further, et cetera.
So, Maiorino went to the chief with his
fears, and they both decided, you've made me
aware of it. If anything further happens,
I'll be on top of it. Let's just see what
happens next.
Howe gets wind of this and he goes to
Maiorino and he says to him just what's in
his memo, he says - or rather he confronts
Murphy. And Murphy allegedly said that he
had some photo and that he had stated to the
officer - I guess, this is Howe telling
Murphy that it was his understanding that
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Murphy had stated to Maiorino that he was
going to hold that over his head.
Maiorino denies that Murphy ever said
anything like that to him. He denies that
Murphy ever told him he had a photograph.
He basically says, the only thing he knew
about any photograph was the theory he had
in his head about, was that a flash or was
that a headlight flashing, which he had
never resolved to his satisfaction and he
said he never confronted Murphy about it.
But he did tell the chief and he must have
told other guys, because somehow it got to
Howe.
So, Murphy denied that he had any
photos. He claimed he had no photo of
Maiorino. And apparently Howe went to
Maiorino and said, does Murphy have a
picture of you sleeping?
And Maiorino told Howe, I don't want -
I'm not telling you anything. I'm not
complaining. I'm not saying anything about
anybody. Whatever problems I got, I'm going
to work out myself. Leave it alone.
So, rather than do that, Howe prepared
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the letter of July 19, 1997, which he gave
to the chief. And the chief brought in
Murphy and Maiorino. Murphy denied having a
photograph. He claimed that the flash that
Maiorino saw was the headlight of the car
being turned on and off to startle Maiorino,
which it did. They acknowledged that they
had no problem working with each other, that
they didn't want to have any problem with
each other and they wanted the incident to
be done with, resolved, gone away, which was
a result that the chief would have been all
too happy to have.
Howe wouldn't let it go. He requested,
and the chief ended up interviewing
everybody and anybody who allegedly had ever
heard anything out of Murphy or Maiorino's
mouth regarding this alleged incident.
Well, the chief investigated it and
investigated it and he couldn't find
anything to substantiate that Murphy had a
photo that he was holding over Maiorino's
head.
It got to the point where Howe,
unwilling to let it go and insisting that
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the officers were lying - basically, the
chief told him, look, this is no problem.
You're creating a problem where no problem
actually exists. You're creating corruption
in the department, trying to get these guys
lined up against each other when they don't
want to fight. And the way you're handling
this gives me a lot of concerns about your
capability as a supervisor. You don't need
to go finding problems that don't exist and
making them into bigger problems. Let it
go.
And ultimately he reprimanded Howe in
writing for the way that Howe pursued this,
because he wouldn't let it go. He wouldn't
accept the representations of the men, that
the events that he was concerned about
never, in fact, occurred and that as far as
the men were concerned, the problem was
resolved.
I guess, the best thing about this, is
that Murphy and Maiorino, at least, ended up
talking to each other and being on the same
side of an issue, because they were both
extremely upset with Howe dragging this out
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and taking it in front of the chief and
dragging other officers into it when they
were prepared to work it out between
themselves.
But, I guess the only happy
repercussion on this, is that Murphy and
Maiorino bonded in their hatred over the way
Sergeant Howe was handling this and dragging
them through the mud and dragging the rest
of the department through the mud.
And I've got my file with me, this is
all of the paperwork that we've generated so
far on this matter. And I can tell you,
there's been an inordinate amount of police
time and town attorney and town manager time
spend on what appears to be a non-event.
The bottom line is, it appears to be no
evidence that there was ever any photo or
ever any threat made of holding a photo over
anyone's head. And it's basically gossip
and Sergeant Howe's speculation and
supposition that resulted in this.
He was upset with Maiorino because he,
Maiorino, wouldn't complain against Murphy
and wouldn't drive for him anymore. So,
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Howe's got an unrelated reason to be upset
with Maiorino and he's already upset with
Murphy because of their competitive stuff.
And all of the officers have testified so
far that Murphy and Howe did not get along,
did not like each other, et cetera.
So what happens next is, after the
chief gives him his official reprimand,
which is a written document, on November
26th Howe writes another memo. And at first
he attacks Sergeant Paul. Sergeant Paul had
gotten dragged into this, because he
confronted Howe. Howe apparently confronted
Paul, because he was upset that Paul wasn't
backing Howe up --
MAYOR VORESS: You mean November 22nd.
MR. CORMAN: Yeah, this is the November
22nd. I'm sorry. The November 22nd memo,
which is attached to the complaint as
Exhibit B.
MAYOR VORESS: Right.
MR. CORMAN: Apparently Howe and Paul
had a confrontation, during which Howe
accused Paul of having quote, unquote, "no
balls", because Paul wouldn't back up Howe's
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version of what happened. And Paul's says
he wasn't backing up Howe's version because
that version was inaccurate. There was no
version as Sergeant Howe's version. But
apparently this lead to a heated discussion
between Paul and Howe.
There does not seem to be any dispute
that he told Paul that he quote, unquote
"had no balls", close quote, dealing with
this issue. Sergeant Paul was extremely
upset about this and did a written memo to
the chief complaining about the way that
Sergeant Howe spoke to him.
Howe goes on to say that if somebody
robs a bank and gives the money back, no
crime is committed, but it still goes to the
initial issue "was there ever a photograph"
he's assuming there was a photograph in his
response there.
There was one point also where the
chief tried to get all of the participants
in a room together to discuss this and
Sergeant Howe refused to attend that
meeting. The chief took issue with that and
reflected in his written reprimand that it
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was unprofessional of Howe to refuse to
unattend the meeting. And Howe's response
was, well, if it was so important - if it
was so important, you should have ordered me
to be there.
And I'm sure that the chief would
consider the invitation - if it wasn't
actually an order, a reasonable person
getting a request like that from a
commanding officer would assume that you're
supposed to show up, and he chose not to.
When chief called him to task for it,
he objected that, well, really you should
have ordered me there if it was so important
that I be present.
They he goes in Paragraph 4 through the
complaint he gets from other officers that
he had made in the past. And for none of
these events have any police reports ever
been prepared by Sergeant Howe, which is
required by the department's rules and
regulations.
In some of these instances there had
been verbal reports by Sergeant Howe. Some
of these instances occurred months, if not
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21
years, prior to this letter. And I think
that the chief's position would be that in
each instance, that Howe actually did make
any kind of report, the chief looked into it
and dealt with it as the chief deemed
appropriate.
So, what we see in Paragraph 4, is not
really very new. But let me briefly go
through it, because I think each of you need
to get some sense of the issues that are
going to be presented to the jury as
examples of the sergeant's whistle -blowing
activity. And then we'll look at the
statute and we can try to make a judgment as
to whether or not they are going to qualify.
He claims that Officer Wallin failed to
respond to his Signal 21 in progress of a
cat burglarer. And he had to called Delray
Police Department for assistance, that
Wallin didn't show up until an hour later.
He was at the Holiday Inn and missed the
call, which Howe states, had placed his life
in danger.
MAYOR VORESS: What is a Signal 21.
MR. CORMAN: It's a burglary in
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progress.
Is that right, Chief?
CHEIF CERVASIO: Yes.
MR. CORMAN: So, basically Wallin had
missed the call. He apparently was in the
Holiday Inn, and because of the noise volume
in there he just didn't hear the call and he
showed up to the call around forty minutes
late. When he arrived, Howe and the Delray
Police Department were present.
Wallin prepared a report, that on its
face, he would argue is ambiguous and
doesn't reflect or state that he actually
showed up on time. But it reflects that the
call was responded to and dealt with, which
it was.
Howe, according to Wallin, indicated to
Wallin that he would protect him on this
screw -up. Wallin claims that he showed how
the report and that Howe approved the report
before he filed it. No where on the report
does it reflect that Wallin showed up late.
Wallin then had a couple days off and
then he reported to work. And the first
thing he did that next day is he went to the
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chief and told the chief, verbally, what
happened. And the chief disciplined him
verbally, reprimand him verbally, but did
not create a record of the event in the
personnel file.
Is that right, chief?
CHEIF CERVASIO: Yes.
MR. CORMAN: Wallin has never had a
problem like there again. And the chief and
Wallin would both tell you that the chewing
out and severity of the screw -up was
punishment enough and that Wallin knew that
he had blown it, and that he - you know,
that that incident hasn't occurred again.
According to Wallin and according to
the Chief, Howe never brought this to the
chief's attention, until several months
later when Wallin filed a report against
Howe. And Wallin filed a report against
Howe because Howe supposedly was giving
incorrect information to a citizen whose gun
he had seized. And Howe had failed to fill
out the proper paperwork, according to
Wallin, had failed to prepare the necessary
paperwork to reflect that he and through him
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the department had taken possession of a
citizen's firearm.
And Wallin had already run checks with
the local agencies and determined that this
individual was entitled to carry the weapon.
And when the individual called in to Wallin,
Wallin told Howe that the individual was
entitled to have his weapon. And Howe,
apparently during a telephone conference
with this citizen, which Wallin was hearing
Howe's end of, was giving the citizen
inaccurate information and suggesting the
citizen had to do anything, which, in fact,
the citizen did not have to do to regain
possession of his gun.
And Wallin was like waving at Howe,
trying to get his attention and give him
accurate information to convey to the
citizen. When Howe ended the call, he
started yelling at Wallin and degrading him
for interrupting him during this
conversation and telling him how to handle
the matter, resulting in Wallin filing the
complaint against Howe.
During this complaint against Howe, for
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the first time - and this is almost six
months after the fact - Howe brings out the
fact that Wallin was late for a call,
thinking that now I'm going trump Wallin and
put this complaint - get it off me and let's
get focussed on Wallin, because he missed
his call, which a more serious problem than
whatever I did with the citizen.
Unfortunately for Howe's strategy, the
chief already knew about Wallin missing the
call and told him that. He said, I know
about that. Wallin came to me right after
it happened and told me all about it - not
adding in, why didn't you, why did you sit
on this all of this time.
Howe will now apparently claim that he
verbally told the chief about this, either
the same day or immediately after it
happening.
Chief, my understanding is that never
occurred?
CHEIF CERVASIO: No.
MR. CORMAN: Okay. So, you've got a
credibility question there. Did Howe
verbally tell the chief or not. The chief
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says, no.
It's interesting the way it came out.
Everybody agrees it came out during the
confrontation where Wallin was filing the
complaint against the sergeant with the
chief.
So, that's the story on Wallin and the
twenty-one. He blew the whistle on himself.
The chief dealt with it. The problem has
not reoccurred. And Sergeant Howe blew the
whistle verbally for the first time when he
was under investigation for a different act
of wrongdoing. And then in this letter of
November 22nd, after he's responding to a
written reprimand from the chief on an
unrelated issue.
The next thing he has is that Police
Officer Corsino was taking photos of female
rear -ends while walking or riding bicycles
while on -duty in a police cruiser.
Again, no record of this. No
identification of when this occurred. No
identification of who the witnesses were to
this event. Corsino denies that he was
engaged in any such activity. Nobody has
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ever seen any photographs, that supposedly
substantiate that this occurred.
We have not spoken, at least I have not
spoken with Ted Hanna (phonetic) to find out
what his source of information on this is.
Ted Hanna has his own history with the town,
which is not stellar. He has his own set of
problems. I don't know how credible he will
be on this issue. One way or the other, we
do need to follow-up though, and communicate
with them about what he knew, if anything.
Then there's an incident, an alleged
incident, involving a sexual harassment
complaint by a Delray Beach Fire Department
Employee, Eileen Tuckman against Officer
Corsino. On this occasion the Sergeant came
to the Chief and told him that it was his
understanding that Corsino was sexually
harassing Eileen Tuckman - the buildings
were adjacent to ours.
The chief asked Eileen Tuckman, is
there a problem here? Eileen Tuckman gave
the chief a letter reflecting that there has
never been any complaint against Officer
Corsino sexually harassing her. The chief
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showed Sergeant Howe that letter.
Incidentally, you know, according to
police regulations, if someone such as the
sergeant wants to make a complaint against
an officer, the regulations do say he's
supposed to prepare a report, interview
witnesses, provide witness statements - none
of which was done in any of these incidents,
with the exception of the Murphy/Maiorino
thing.
CHEIF CERVASIO: Can I just interject
just one thing in this?
MR. CORMAN: Absolutely, Chief.
Please correct me if stated anything
wrong.
CHEIF CERVASIO: You stated that
Sergeant Howe came to me told me about this.
The first I heard about this incident
was in Sergeant Howe's November 22nd memo to
me. So, he never came to me prior to that
with this allegation.
MR. CORMAN: Okay. So, this was the
first time you've ever seen that?
CHEIF CERVASIO: This was the first
time any of these allegation you're
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referring to now. First time was after the
reprimand to Sergeant Howe and he gave me
his November 22nd response to these.
MR. CORMAN: Well, the thing with
Wallin, though, came out --
CHEIF CERVASIO: That thing with Wallin
came out right after it happened. Right.
MR. CORMAN: Well, it came out when he
complained about the gun thing?
CHEIF CERVASIO: Right.
MR. CORMAN: Right. Wallin told you
right after it happened --
CHEIF CERVASIO: Wallin told me several
days after the incident occurred.
MR. CORMAN: And Howe didn't tell
you --
CHEIF CERVASIO: Howe didn't tell me
about that until six months later.
MR. CORMAN: Okay.
CHEIF CERVASIO: But I'm talking about
this sexual harassment complaint. Sergeant
Howe never came to me to tell me about this
until I saw it in his memo.
MR. CORMAN: Okay. So, in response
with this he met with - he spoke with Eileen
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Tuckman, she gave him a letter saying, no
problems here. Howe then went back to
Tuckman and talked to her about, you know,
sometimes recollections change over the
course of time, maybe you're just forgetting
what we talked about and what happened.
She then gave a second letter to the
chief complaining about the fact that Howe
approached her trying to get her to change
her story.
Now, of course, Howe's going to portray
this as the Town and the Department putting
pressure on her to deny this stuff, when, in
fact, it's true. But here we have a
department employee giving us a written
statement that there's no problem and Howe
won't let it go.
Now, I can certainly tell you from
someone who certainly deals with harassment
issues, if you can get an employee to give
you a written statement there's no problem.
That's usually what you want. And you
usually want that to be the end of it. You
don't want to go back to the employee and
say, gee, are you really sure? We would
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like to pursue the complaint. Don't you
want to go after this guy? Come on, let's
do it.
I mean, that's not what a supervisor's
supposed to do. He's supposed to be a
problem solver, not a problem cremator. He
thought there was a problem. The chief
investigates it. The employee denies that
there's a problem, and rather than accepting
that on its face, he goes back to the
employee to get the employee to repudiate
the employees stories and to pursue the
accusations against Corsino, which the
employee is denying there is any basis for.
Okay.
The next incident is Capone sleeping
inside his police cruiser in State Lucy's
Church yard. Again, we have no dates, we
have no times, we have no witnesses. None
of this is ever substantiated. Capone
denies that he sleeps inside his patrol car.
I think all of the officers will
acknowledge, that from time to time when
they're on a long shift and the radio is not
going off and it's dead - and the reality
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is, in this town this happens from time to
time - their eyelids may start shutter
closed.
You know, I'll tell you, I see it
happen to judges, I see it happen to jurors,
sometimes you're doing things and they're
not particularly interesting and the next
thing you know, your eyes are closing. I
mean, it's happened to me driving on the
road.
What you do is, you pull over and you
go to the bathroom and wash your face and
wake yourself up. But it's not impossible
to my imagination, that from time to time an
officer's eyes may flicker closed. And the
officers acknowledge that from time to time
they may be catching themselves in the
process of their eyelids dropping, but that
they're trained and work hard and make sure,
in fact, they don't fall asleep.
And the most important thing is - and
the Chief has checked into this - is that
the sheriff's response time records reflect
that when paged, our officers timely
answered their calls.
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So, if they are nodding off, they're
waking up the minute they're buzzed. And we
have not observed any officers sleeping in
the cars. And the most important thing is
we're not finding officers taking their cars
and parking behind buildings and putting
down the seat and breaking out a blanket and
pillow and really going to sleep.
I mean to the extent any "sleeping",
with quotes around it, is going on -- The
officers refer to it as resting.
And I remember when I was a kid,
sometimes I would come upon my dad and he'd
have the Wall Street Journal out, which has
all of those tiny stock quotes and his eyes
would be closed. And I would go, dad, are
you sleeping? And he would go, I'm resting
my eyes.
And the officers would tell you that
from time to time, they do rest their eyes,
but that they do not fall asleep on the job.
Capone acknowledges that, you know, he
can't tell you during the course of every
single shift he's ever worked there has
never been an occasion where his eyes
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haven't flickered closed for a few seconds.
And I think the reality is it's an
experience universal to all police officers.
So, I don't know what we do with that.
You know, I think that the officers all know
they're not supposed to sleep on the job. I
don't know if there is anything that you can
do to cure that on all occasions. The
bottom line is, the chief talked to the
officers about it and the officers are aware
of it. And within the constraints of human
nature, I believe that they all work
diligently to stay awake and do their jobs.
But I don't think any of them is
prepared to swear on a stack of by bibles
that there has never been any occasion in
which their eyelids might not have dropped
forward. They will deny reclining the seat
and, you know, really cuddling up for a nap.
And I think you're basically really looking
at confronting human nature.
Then there was an incident involving
the quoted, unquote, "entire day -shift crew"
sitting inside and watching football. And
apparently what happened on this occasion,
a
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Sergeant Howe and his wife were coming by
the department to get some laundry. He
observed that there were a couple of patrol
cars out in front of the department
building. He waited some unspecified time
period, he's going to claim it was twenty
minutes to a half hour and no one came out.
He then went inside the building and
discovered three of the officers, he claims,
sitting there watching TV.
The officers claim one of them was on a
lunch break, one of them was assigned to be
there on light -duty - I believe that was
Corsino and he was supposed to be within the
department working and manning the desk.
And the other officer had come in for a
bathroom break, and he insists he was in and
out within ten minutes.
So, you've got a fact dispute in terms
of how long was he actually there. Only the
guy eating lunch acknowledges that he was
watching the football game. There's nothing
wrong with that.
When the chief heard about this, it's
my understanding that he no longer allows
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the games to be watched within the station.
So, that was his response to this event
originally being brought to his attention.
He spoke with the officers that were
involved. They gave him their explanations.
Obviously, the men have to go on bathroom
breaks. That guy was encouraged to make
sure he takes his brakes as quickly as
humanly possible. The guy that was on
lunch, was on lunch. And Corsino was on
light -duty, he belonged there. So, there
was nothing wrong with the other two guys
that were there.
So, this was an incident and you had
heard about this before, right, Chief?
CHEIF CERVASIO: Yes.
MR. CORMAN: The Chief had heard about
it. He dealt with it. He eliminated the
television watching from the department.
And it was affectively, in the Chief's mind,
it was affectively resolved. Okay.
The next incident has to do with Capone
being asked to determine if a motor vehicle
parked on the lot was stolen. And his
response was it was only a rental. And then
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Racine apparently was asked the next day and
he advised that it was a stolen car. I
haven't really been able - I mean, nobody's
clear what the heck this is about. Nobody
seems that, at least none of the people that
have been interviewed and met with to date
are uncertain as to exactly what Howe was
referring to.
Again, we have a problem with no dates,
no individuals identified in terms of who
made the complaint through the department,
et cetera. There are no department records
reflecting that this incident ever occurred.
Chief, do you have any other
information on that?
CHEIF CERVASIO: No. We tried -- Well
again, I'm talking about knowing something
much or maybe years after the event occurred
- supposedly occurred. There was no way of
knowing if indeed there was a stolen car up
there that was not checked out.
There was nothing given as times, dates
or where the complaint came from on Sergeant
Howe's behalf.
MR. CORMAN: So, discovery is still
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ongoing on this case. Myra Tishman's
(phonetic) deposition is scheduled for later
this month. Maybe she'll be able to shed
some light on this.
MAYOR VORESS: She is -- Ms. Tishman is
who?
MR. CORMAN: Myra who used to work at
the Holiday Inn.
MAYOR VORESS: Holiday Inn employee.
Okay.
MR. CORMAN: I think she was manager.
So, maybe she'll be able to give me some
factual information. But Racine and Capone
were uncertain as to exactly what this
incident referred to.
The next thing that is complained about
is Officer Angelillo who was supposedly
called to the Holiday Inn, because a woman
was stealing food from the buffet on Sunday
brunch. He responded - actually, it wasn't
even a call. It turns out it wasn't a call.
He happened to show up on his assigned
rounds.
He confronted the woman. And according
to Howe, he let woman drive off in an
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intoxicated condition. Angelillo says it
was unclear whether the woman was
intoxicated or not. To his observation, she
was capable of walking a straight line and
wasn't giving any objective indications of
being intoxicated.
She was distraught and distressed, but
he attributed that to the fact that she was
caught stealing the food. And she had a
pocketbook or a bag - there was a factual
dispute that the food was in her pocketbook
or the food was in a brown bag.
Dino Santurelli (phonetic) has been
deposed and his recollection was it was a
brown bag. But in any event, Angelillo
confronted this individual, the individual
was told by Angelillo that she should try to
get someone to pick her up, rather than
drive her vehicle because he was concerned
that, one, she might have been intoxicated
and two she was clearly distraught and he
didn't think it was a good idea for her
necessarily to be driving.
She went into the Holiday Inn lobby to
make a phone call to her husband or for a
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cab, which is what Angelillo had suggested
to her. And while she was there he had
received another call that he had to respond
to, it was a medical emergency.
So he responded - he left the scene
thinking that things were relatively under
control. The Holiday Inn didn't want to
press any charges on the stolen food, they
just wanted her to leave the premises and
that was being accomplished.
So, he left to respond to the medical
emergency call and supposedly this woman
then drove off in her vehicle. Dino
admitted that he didn't know if, in fact,
she drove off the premises. And we have not
yet taken Myra's deposition, she was the
other employee. So, at this point we don't
know for a fact that that woman even drove
the vehicle off the premises herself or not.
But the bottom line from Angelillo's
prospective was she wasn't clearly
intoxicated, and in an abundance of caution
I told her to find herself a different way
to get home, which she was in the process of
doing, because she had not gotten behind the
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41
wheel. He had no basis - he had no basis to
arrest her or do anything further. And he
had to respond to the medical emergency
call.
The chief and the other officers tell
me that Angelillo followed proper police
procedure in handling that matter. Dino
felt that Angelillo could have done more to
document the event.
Angelillo's attitude was there really
wasn't an event to document, there was no
arrest made. He wasn't responding to a call
he just happened to be there. The woman was
voluntarily cooperating, so he didn't
prepare a report on it.
So, the bottom line from Angelillo's
prospective is, there was no drunk woman and
I didn't let her drive away. And Howe's
position was contrary and set out here.
So, that basically is his list of
grievances against the different officers
that he was presenting to the chief for
action. And the legal question becomes, is
he being fired because he reported this
stuff -- I guess, the first legal question
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is: Is his reporting this stuff protected
by the Whistleblower's Statute, or is it so
minor that it doesn't even warrant that
level of statutory protection.
And then secondary issue would be,
well, if this was protected whistle -blower
activity, was he fired because he was
engaging in it? Okay.
We have the letters, this is the
suspension letter that was originally issued
by the chief.
VICE MAYOR REID: Can I ask a question?
MR. CORMAN: Sure.
VICE MAYOR REID: Wouldn't this fall
under the normal procedure of reporting,
that if he didn't report it, it would be
contrary and it should be reported?
MR. CORMAN: Well, I think that it's
fair to state that his failure to take
timely action - and you'll see that is one
that the chief cites him for in his
memorandum.
VICE MAYOR REID: Well, my point is,
this is not whistle blowing. It's the
opposite of whistle blowing.
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MR. CORMAN: Well, his position is it's
going to be whistle blowing.
I already tried to argue to the judge
on a motion to dismiss that what he's
alleged doesn't equate to something
protected by the Whistleblower's Statute.
Now, we all need to recognize the
judges are very reluctant to grant motions
to dismiss, because they basically tell the
plaintiff you're never going to have your
day in court. We've looked at what you have
and you can't even state a cause of action.
Go away.
Judges will grant motions to dismiss
when it's very clear that it's impossible
for a plaintiff to state a cause of action.
But they don't like granting them because it
deprives the party of the day in court. And
the case law basically says that if the
judge believes there is any set of
circumstances under which the plaintiff
complains about that could constitute a
cause of action, you're not supposed to
dismiss.
Now, that doesn't mean that we can't,
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again, try to resolve this on a summary
judgment motion, but there is some
possibility that the court can decide there
is enough of a factual dispute to require
the Town to go to trial and have a jury
decide was this whistle -blowing activity or
was he fired for unprotected reasons.
The Chief's memo states: That he was
being - that the sergeant was being
suspended without pay, because he
misrepresented information in, regarding to
an unsubstantiated sexual harassment claim
against Corsino.
That he misrepresented information
regarding to an unsubstantiated claim that
Angelillo allowed a woman to drive off in
her vehicle while under the influence.
That he falsified police department
records by not acknowledging Wallin's
failure not to timely respond to the call.
That he's made derogatory remarks about
other officers in the department, which is a
common theme that we hear from the officers
about Sergeant Howe.
That he talks to other officers that
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are his subordinates and says mean things
about other officers to them, which is a
clear violation of department policy; that
he failed - his defense in part to that is
that other officers do that to him and to
each other. One could say he's supposed to
lead by example, not sink to their level.
On the other hand, you can also say
that maybe that's a legitimate point on his
part and the whole department is engaged in
this type of behavior, so maybe we're
treating him to harshly. But, you know,
typically it's appropriate to hold
supervisors to tougher standards than
ranking employees.
That he failed to take timely action on
violations, rules and regulations coming to
his attention for which he had personal
knowledge, as is contained in his 11/22
memo, which basically goes to the issue of
not timely reporting all of these incidents,
not properly documenting them.
And he points out that these activities
have had an adverse impact on the morale of
the department. And to each of these
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incidents he asserts complaints about
officers were coming forward with responses,
they with coming forward with counter
charges and the department was sinking into
a morass, where I was starting to think that
all these guys were doing all day was
writing memos against each other.
I mean, it was getting to the point -
and the chief can back up, in terms of the
level of disruption this was creating within
the force. But these guys were becoming
more occupied with memo writing, about these
historic events that weren't even
contemporaneous with any ongoing problems,
rather than doing their dually assigned
duties and jobs. And then he points out
that these incidents were never previously
identified or raised.
The town manager, upon Howe's request
that the suspension be reviewed, did her own
investigation which included our meeting
with any individual in the department who
wanted to meet with us to discuss anything
that was happening in the department. It
wasn't really an investigation, it was more
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of an invitation to talk to us about
anything that was going on.
All of the officers came in, except
Goldberg. All of the officers who came in
had complaints about Sergeant Howe and the
way that he treated them, the way that he
treated other officers.
Many of them made reference to conduct
that had occurred previously within the
department when the prior Chief Cecere was
in charge and Howe was his sergeant. The
Racine report had pointed out that the chief
and the sergeant's stock and trade was to
circulate unsubstantiated rumors about the
men that would create dissension among the
ranks. And apparently, it was Cecere's
philosophy, according to Racine, that if you
keep the men divided and against each other,
it was easier for him to control the group
because they wouldn't be united on anything
and he could just implement whatever
decisions he wanted and there wouldn't be
any united opposition. And if he want to
target certain people for excessive
discipline, he could do that. And the rest
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of the officers wouldn't back that guy up,
because they were already at each other's
throats.
So apparently, according to Racine,
that was Cecere's management style. And
according to the Racine report, Howe
participated in and supported that type of
activity.
Howe will now tell you - and I'm
expecting him to tell us in deposition -
that he found all of that stuff to be
abhorrent, but only went along with it
because he was just following orders, being
the good sergeant, kind of similar to what
low-level people who do horrible things
below me say when they're caught in those
types of situation. You know, blame it on
the superiors and I was just following
orders.
According to the officers, these same
problems that existed when Cecere was in
charge were being created by Howe again. It
was the same type of pattern where either
non-events or minor events got blown out of
proportion and got turned into bigger
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events. And it was causing us - you can
just imagine the type of morale problems
that that type of conduct would create.
So, the town manager and the chief and
I spoke with many of the men and listened to
what they had to say. Howe came in with his
attorney and we asked him to substantiate
factually the events that transpired. He
could not identify, or at least did not and
refused at that meeting to identify people
who would substantiate what he was saying.
Mary Ann claims that she engaged in an
independent investigation and communicated
with third parties to try to find out if
there was anything to substantiate any of
Howe's charges. And as reflected by her
letter of February 24th, she could not
substantiate any of his claims. And she
found that this course of conduct reflected
that Howe was still engaging in the type of
negative conduct which he had previously
been disciplined in the form of placement on
probation for six months.
By pinning the officers against each
other and creating unsubstantiated
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complaints against the officers, with the
plan ultimately being that since the town
and the chief - Well, the town would see if
Howe was right, that the department was in
the state of chaos, the officers are all not
doing their job - by implication, the
chief's not doing his job - and therefore,
the only person you can turn to to save the
department is the law abiding, rule
enforcing Sergeant Howe.
And so, the men all believed this was
just his plan to become the ultimate chief.
And the officers also complained that Howe
from time to time while on duty would appear
at the homes of citizens who are politically
active in this town, also the homes of
elected officials to create goodwill, to
kibitz and to otherwise secure his
advancement up the ranks of the department.
So, we have a two -prong front, he had a
political friendship -front and then he had
his attack of the other officers and the
chief and make them appear to be incompetent
to pave the way for him to advance. Okay.
What does the law say? That's a good
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question. Okay.
I'm now passing out a copy of Florida
Statute 112.3187, which is the Florida
Whistleblower's Act.
You will see that the first two pages
of what we call, "the pocket part of the
statute", those are the most recent sections
that have most recently been amended by the
legislature. And then the subsequent pages
are the original act. I've lined out the
provisions that have been amended by the
pocket part, but you'll see that you need to
be able to look ultimately at both sections
to see the full scope of rights that
employees have under this law.
If we look at -- What the statute
basically says, is that the legislature
doesn't want employers to fire employees
because the employees come to the employer
and complain in writing that other employees
are violating the rules and regulations.
And I want you to take a look on page -
the first page of the handout, on subsection
(e). And it defines "gross mismanagement"
as being a continuous pattern of managerial
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abuses, wrongful or arbitrary and capricious
actions, or fraudulent or criminal conduct
which may have a substantial adverse
economic impact.
And then under the next section that's
still on Page 170, it talks about the nature
of the information disclosed, that the
information disclosed must include: Gross
mismanagement, which we just defined,
malfeasance, misfeasance, gross waste of
public funds, a gross neglect of duty
committed by an employee or agent or an
agency or independent contractor.
And then if you go to the interior, on
Page 464, which is the one, two - fourth
page of the handout. You will see I have
Subsection (5) crossed out near the top of
the page. And immediately under that is
Subheading (a), which says - and this is
also information protected by the act:
Any violation or suspected violation of
any federal, state or local law, rule or
regulation committed by an employee or agent
or agency or independent contractor which
creates and presents a substantial and
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specific danger to the public's health,
safety or welfare.
So basically, now - I can tell you I've
looked for the cases. There aren't any
appellant reported decisions that discuss
whether the conduct complained about by
Sergeant Howe in this November 22nd letter
constitutes the type of conduct that we just
looked at as defined by the statute.
Did this -- I mean, there were
suspected violations of federal, state or
local rules - no doubt about that - but did
they create and present a substantial and
specific danger to the public's health,
safety, or welfare?
Did they reflect gross mismanagement, a
continuous pattern of managerial abuse?
I didn't think so. I mean, looking at
the language of the statute, it suggested
that the legislature is going after pretty
significant stuff. It doesn't fall to the
level of the type of internal personnel
problems that have appeared to me that
Howe's complaint was addressed to, which is
why I filed a motion to dismiss.
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54
And I told the judge, look at the plain
language of the statute, this stuff doesn't
cut it.
The judge disagreed. The judge
basically said, well, I'm not sure about
that. Let's hear more.
Now, the statute also says, if you look
at the last page of the handout, under
defenses. It shall be an affirmative
defense to any action brought that the
adverse action was predicated upon grounds
other than, and would have been taken
absent, the employee's or person's exercise
of rights protected by this section.
Well, Mary Ann and the Chief's
position, I believe, is going to be that
this whole pattern of conduct - it wasn't so
much what he was telling us, as how he was
telling us.
It wasn't so much that he was
complaining about violations of rules and
regs, as the fact it was months after the
fact - undocumented and no factual
substantiation - and done not to disclose
wrongdoing, but to try to protect his own
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butt when he was under fire for
inappropriate activity himself, that it
reflected bad supervisory skills and that it
was handle so poorly that the morale
problems it created were not tolerable.
Howe's position is going to be, call it
what you want, the bottom line is I was
complaining about this stuff, and because I
was you fired me. Simple and sweet.
We require the fact -finder to go beyond
the simple act of, yeah, he complained, to
say look how he did it, look when he did it,
look why he did it.
I can't tell you with any certainty
that a fact -finder is going to make that
distinction. To me, it's an obvious
distinction. To me, I understand the
difference between reporting something in an
appropriate timely fashion.
Now, I personally think this stuff of
is it timely, how significant are the
issues, was it properly reported - I think
that that should be part of the inquiry and
evaluation process and I'll show you why.
I'm going pass out another statute now.
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And what this statute does is, this
statute really doesn't directly pertain to
US. This only pertains to certain state
employees, so it doesn't cover the Town, but
what I plan to do - assuming we don't settle
the case - is argue to the judge that while
it doesn't directly apply to the Town, it
does apply to the Whistleblower's Act. And
it's instructive and informative on how the
court should evaluate and weigh these types
of complaints.
And it talks about what should the
chief - and assuming you filed the complaint
with the State Attorney's Office, or
Attorney General's Office - what
consideration should the Attorney General
engage in in deciding whether or not to
investigate the complaint?
Because the reality is, that the State
has finite resources and not everything that
gets complained about gets investigated.
So, if you turn to the second page of
the handout, at the end of Subsection (5)(a)
it says: For purposes of this subsection -
I'm three lines before the numbered
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paragraphs.
For purposes of this subsection, the
Chief Inspector General or the agency
inspector general shall consider the
following factors, but is not limited to
only the following factors, when deciding
whether the investigation is not necessary:
One, the gravity of the disclosed
information compared to the time and expense
of an investigation.
Well, boy with a lot of this stuff
there was a lot of time and expense and not
a lot of significant stuff really being
complained about.
The potential for an investigation to
yield recommendations that will make state
government more efficient and effective.
The benefit to have a final report.
Whether the alleged information
primarily concerns personnel problems. They
get investigated under a different chapter.
And my belief is that a lot of this
stuff, like the nodding off in the car,
that's a personnel practice issue.
What can we do to make sure that
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doesn't happen?
And then maybe that's something that we
need to discuss. I know that some of the
car manufacturers are coming out with gizmos
that monitor your heart rate and your pulse
rate and if they detect that you're falling
into a pattern that reflects sleep, the car
start buzzing and flashing lights and
talking to you, telling you you need to wake
up. There's a little coffee symbol that
goes off on dashboard.
I mean, some of the manufacturers are
coming up with technology that we may decide
at some point it's worth investing in to
fight this kind of stuff. I personally
believe it's endemic not only to police
departments, but all walks of life where
people are called on to do extended
activities sitting stationary for a long
time period and they're not having a lot of
ongoing interaction with people.
I mean, it happens with security
guards. You know, I think there's probably
- like I said, it happens with jurors and
judges who are listening to witness
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testimony. So, it's not like this is an
unusual problem.
Whether another agency is conducting an
investigation.
And most importantly, six, the time
that has elapsed between the alleged event
and the disclosure of the information.
Well, when you look at this stuff and
you look at what the investigations actually
turned up, you're kind of left with the
conclusion that there wasn't a lot of meat
there. And it was a lot of stuff that was
kind of blown out of proportion, and
certainly untimely complained about. And to
some extent, it was already investigated and
dealt with by the chief.
And I think part of the problem that
was endemic with Howe was when the chief
would make a decision that Howe didn't like,
Howe would not just accept the decision, but
he would continue to snipe about the
decision to subordinate officers. And
obviously, when the time is convenient raise
it up the flag pole again, even though it's
yesterday's news.
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60
So, that's where we stand. Those are
the issues those, those are the facts. And
the question becomes: Do we want to pursue
a litigation and hope that the court will
ultimately find that this was not
whistle -blower protected activity, or if it
was that he would have been properly
terminated even without the whistle -blowing
activity; or do we think that there is a
significant risk of losing the lawsuit and a
court ruling that he, in fact, had his
whistle -blower rights violated?
From the department's prospective - and
I can tell you that the individual officers,
their greatest fear is that Sergeant Howe
comes back within the department. Now you
may have your individual opinions as to
whether or not Howe is right and the
department is not complying and doing their
job properly and the chief's not having a
strong enough hand with the officers, or you
can believe the officers that everything in
the department is running smooth.
I can tell you that they have no
complaints any more, at least that I'm aware
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61
of, about what's going on within the
department. And my understanding is that
the officers are no longer bickering with
each other and everyone is focused on doing
their job.
Howe would probably say that that's
because they're getting to do whatever the
heck they want. So why shouldn't they all
be happy, no one's making sure that they're
doing their jobs.
I'm not there every day. I don't know
what to tell you. You guys live in the
town. You guys have an opportunity to
observe the department. You have the
opportunity to talk to the men,
individually. You know, I suppose you can
have another outsider come in and perform
another investigation, but certainly the
morale problems are resolved.
And as far as I know we're not
suffering from any great crime rate because
the men are sleeping on their job and
burglars are walking off with the
possessions of the citizens.
The other thing to recognize, that even
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if we're successful, litigation is an
expensive undertaking. I've reviewed our
bills, it appears that we have already
billed the Town, or we have time in our
files to ultimately - we will have billed
the Town around twenty grand in connection
with this case to date.
A lot of depositions have been
conducted. At this point deposition
transcripts have not been ordered.
Deposition transcripts typically run from,
anywhere from a five hundred to a thousand
dollars a transcript depending on the
length. A lot of depositions have been
pretty lengthy. So, we're probably looking
at several thousand dollars in transcript
bills, which I'll ultimately have to order
if we don't resolve the case.
The proposal from Sergeant Howe's
lawyer is that the parties -- Well, first of
all.
COMMISSIONER SORREELLI: Larry, before
you begin, can I ask you a question?
MR. CORMAN: Sure. Absolutely, as many
as you like. That's why we're here.
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COMMISSIONER SORREELLI: Just explain
to me two questions.
The letter we got on November 22nd,
that we got from Howe, was he ever sat down
and talked to; did anybody say, we can work
this out?
Would he sit down with anybody?
MR. CORMAN: I believe that there was
ongoing communications between the chief and
Howe both before and after the November 22nd
letter.
Isn't that accurate, Chief?
CHEIF CERVASIO: Yes.
COMMISSIONER SORREELLI: He was set
down?
CHEIF CERVASIO: Yes. I asked him on
several occasions to meet with me and the
officers, that he was making these -
basically Murphy and Maiorino, and he
refused on several occasions.
I generated a lot of paperwork, I think
you will see, if you read my report on this
particular incident, how many times Sergeant
Howe was asked to come in and meet with
myself and these officers. He refused on
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64
every occasion. Okay.
And I even - after I had given him the
letter of reprimand, I even gave him another
- prior to the letter of reprimand, I gave
him another occasion, after I had closed the
case out and I found no substances for his
charge or anything like that, I was going to
close the investigation. I still left the
door open for him to produce any witness or
any evidence he had to corroborate his
complaint. He did not do it.
I even had another meeting November
12th with him and all of the others
involved. At that point he came in, he just
said, basically, his answer was that
everybody's lying and he's telling the truth
and that was it.
COMMISSIONER SORREELLI: What about the
one on February 24th, that Mariano fired --
Before this letter was sent out, was he
spoken to?
MR. CORMAN: I don't believe he was,
no. His opportunity to come in and talk to
us was when we had the open meeting with all
of the different officers, and he came in
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with his attorney at that time.
He was asked - I mean, we tried to sit
down with him and substantively discuss --
COMMISSIONER SORREELLI: Was this
before the letter or after the letter?
MR. CORMAN: Yes, this was before the
letter of February 24th.
COMMISSIONER SORREELLI: Okay.
MR. CORMAN: This was before the
suspension of January 28th.
This was our attempt to clear the air
by meeting with each officer and trying to
get to the bottom of it, and getting it all
resolved.
Howe showed up with his lawyer. He
didn't want to get into any substantive
discussion of the different events. We
tried to get him to identify people who
would substantiate the complaints, which he
ultimately never did.
And his response is, in fact, that
everyone's lying. Now, I don't suppose that
that's an impossibility. Maybe everyone's
lying, but, you know, to me - the thing that
was most egregious to me with Murphy and
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66
Maiorino, you have two guys that are telling
him we want to work this out between
ourselves, we can work this out between
ourselves. The chief's aware of the
problem. I mean, at that point most
supervisors are going to say, great, go work
it out between yourselves, and if you can't,
come back to me.
And these two guys weren't even under
Howe's watch, they were under Sergeant
Paul's watch. So, it wasn't even really
Howe's responsibility, and he's interjecting
himself into another shift's problems. And
he's not letting the guys work it out, which
is what they're saying they want to do.
The same thing with the fire department
employee. Great, if you think there is a
sexual harassment problem - absolutely get
it reported. But when you go to the
employee and they say there's no problem,
don't keep bugging them and say, yeah,
there's a problem, make it a problem.
That's not good supervisory skill. You
document that there is no problem and you
move on.
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67
And within that you tell them, if there
ever is a problem come talk to us, because
if there is a problem we want to deal with
it. But if there's not a problem, we don't
want to create one.
MAYOR VORESS: Let me --
MR. CORMAN: I'm sorry. Go ahead,
Mayor.
MAYOR VORESS: Can I say a couple of
things?
Listening to you talk, Larry, and
thinking about some of the basic things that
I think the Commission may or may not know.
One, a previous case with Officer
Corsino was a case in which our insurance
company paid the cost for.
In this particular case, we have no
insurance coverage on this Howe case. So,
the Town is paying for that. I think it's
important that the Commission understand
that. And that's because, as I understand
it, the way this case was brought - and
correct me if I'm wrong, Larry - it does not
fall under the accountability of our Town's
insurance to pay for this issue.
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MR. CORMAN: That's the position the
carrier has taken. And it appears under the
plain language of the policy, that is an
appropriate position for them to take.
MAYOR VORESS: So far we have paid
twenty thousand dollars.
MR. CORMAN: Well, you haven't paid. I
think you've paid around twelve. You either
have been or will be billed for another
eight.
MAYOR VORESS: We've got twenty grand
in --
MR. CORMAN: And obviously there's
unbilled time yesterday and getting ready
for today's meeting, and I've got
depositions coming up. There's a lot of
work to be done in this file. There's a lot
of witnesses to be interviewed and deposed.
We may have to hire an expert witness
regarding police procedure and policy to
establish, did the chief properly deal with
the complaint to the extent they were
brought to his attention?
So, there are some significant outlays
that we may have to make if we're going to
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pursue the defense of this case,
particularly if the judge doesn't let us out
on a summary judgment motion.
MAYOR VORESS: So, Bill Howe through
his attorney this Alan Eichenbaum --
MR. CORMAN: Right. He's one of two
attorneys that he's using.
MAYOR VORESS: I was going to say --
MR. CORMAN: Steve Melnick.
MAYOR VORESS: -- he originally had
Steve Melnick.
MR. CORMAN: Steve Melnick's co -counsel
on the case.
MAYOR VORESS: So, there's two
attorneys --
MR. CORMAN: There's two attorneys
working the file.
MAYOR VORESS: Does this cost of
$72,000, which is $25,000 for the lawyer and
forty-seven for Bill Howe, in total numbers,
does that include both attorneys?
MR. CORMAN: Yes.
MAYOR VORESS: Melnick and this guy
here?
MR. CORMAN: Yes. And I think the
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reason their fee request is so high is
because they've got two lawyers working the
file.
MAYOR VORESS: Okay. So, there's the
top end of 72,000 versus we've got twenty in
it so far. So, if you won't hold me to my
arithmetic, if we fought the case and were
successful, we're going to have fifty - you
got fifty to deal with, the difference
between those two numbers, between paying
him off and fighting it and then not paying
anything.
We wouldn't get any money back if we
won?
MR. CORMAN: Well, there is the ability
to obtain attorney fees, but the reality is
that most individuals between the
protections provided by Florida's Homestead
Statute, the ability to hold assets as joint
tennants by the entireties with your spouse,
most married individuals can successfully
protect the vast bulk of their assets. And
it would be unlikely that we would collect a
judgment against Sergeant Howe for our legal
fees.
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MAYOR VORESS: My view is, we're not
going to get any money back.
MR. CORMAN: The money spend on the
lawyers is, pretty much, money that is gone.
MAYOR VORESS: What I hear Larry saying
to us now is, one, that Bill Howe's case is
primarily based on being able to support the
exemption under the Whistleblower's Act and
the law is unclear, because there haven't
been that many cases on which way the judge
might lean.
So far Larry's request for summary
judgment or dismissal of the case has been
refused by the judge, so that has not
worked. It seems to me that another issue
that is very important here, is if Bill Howe
won and came back to the department as a
full-time employee, either as sergeant or
patrolman - not arguably which that is - my
opinion is that there is enough animosity
left within the department -- Now, Dan
Murphy is dead, that's one of the players in
this, as all of us know -- That that would
be a very difficult management problem for
the chief to deal with.
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Is that correct or incorrect, Chief?
CHEIF CERVASIO: You're correct,
Mr. Mayor. Yes, sir.
MAYOR VORESS: And so we would - if he
won we would have an additional problem
within the morale of the department.
The other side of that coin is, if we
give in and say, okay, we pay the money and
get out. There would be some that would say
well, all you got to do is bring suit in
Highland Beach and they'll crumble and pay
you the money. It's a judgment call.
So, from a financial point of view, I
believe that if it was my own money, and I
see spending the Town's money with the same
kind of constraints I use in my own personal
life. I don't think it's - to my judgment,
it isn't a good deal to pay lawyers rather
than settle the cases. So, I would tend to
say that I would pay the money and get out.
I believe that's what Larry - that's
what came through my head when Larry was
talking with all of us here.
This is a very complex case. He was
given - Bill Howe, over the years until -
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check me if I'm wrong, chief - until July,
based on this data here, and that's the
extent of my knowledge, good performance
reviews.
MR. CORMAN: Yeah. Now, of course, I
would say that Cecere was giving him good
performance reviews, because Cecere was his
buddy and they were engaged --
MAYOR VORESS: I understand.
MR. CORMAN: It's important to, Mayor,
to get the right slant on this thing.
MAYOR VORESS: Okay.
MR. CORMAN: Then he was put on
probation after the Rider Report. The Rider
Report in many ways can be looked at as an
evaluation review and how Cecere failed
miserably, which resulted in Cecere's
resignation and Howe being placed on
probation for six months.
MAYOR VORESS: Right.
MR. CORMAN: Following probation, Howe
was a good boy - no doubt about that.
When he got off probation, these
problems starting to occur. And most of
them really started to occur after his last
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evaluation.
So, we'll have to argue that, yeah, the
- you have to discount the original ones,
because they are not accurate. They were
done by his buddy. And he tolled the line
after he got put on probation, but he
couldn't change his spots completely and the
true Howe came out after the July
evaluation.
MAYOR VORESS: Okay. I would accept
what you're saying.
This would be a jury trial?
MR. CORMAN: Yes.
MAYOR VORESS: Okay. Let me go on with
what I'm saying.
MR. CORMAN: Absolutely.
MAYOR VORESS: Okay. There are a lot
of reasons for us to say that those
evaluations we gave to him up until July
1st, or - I know you can say he was Howe's
buddy and all that, but if I'm a juror
sitting out there hearing all this stuff, I
as the Town say, we gave you these but they
weren't really right. Cecere who was our
police chief was a buddy to him, so he gave
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those you.
Now, we have a new police chief in and
a new different group of people in, and now
they're saying we're going to have a
different set of values, and he's bad now.
I'm not arguing good or bad, I'm
thinking as a juror. And then I'm going to
get all of the complications in of the
Whistleblower's Act, whether it is or isn't
applying here, or in what manner it's
applying.
I think in those few times I have
served as a juror, to the jury pool where
citizens are required to -go and be jurors,
the more difficult the case becomes, the
less chance all of these very real, but
sophisticated views on how you should judge
it on a case of law becomes lost on a jury.
So, I guess, what you have left me with
Larry, is the view that, yes, we've got a
good case. But from a juror's prospective,
do all of these complications that we say,
well, these things, yeah, were in his favor,
but they really weren't true, will that come
down?
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And from a money standpoint and in a
business review, I guess, I'm concerned -
and just to lead to a start of a discussion
here with the Commission, because each one
of us will have a say in this, I believe
that our chances of losing this case in
front of a jury, because of the
sophistication, are at least 50 percent.
MR. CORMAN: Well, I don't know. I
mean, it's going to ultimately come down as
to whether you're going to believe Sergeant
Howe or ten officers that we're going to put
on the stand and are going to say that he
was the closest thing to the devil.
MAYOR VORESS: Okay.
MR. CORMAN: If you walk away after
listening to Sergeant Howe believing he was
the only upstanding officer that we had and
the rest of the guys were a bunch of bums,
we're in trouble.
But we'll have a lot more people
testifying that, in fact, they were doing
their jobs and that Howe was making
mountains out of mole hills. But
ultimately, it always comes down to witness
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77
credibility and I suppose one person can be
believed over ten.
MAYOR VORESS: I'm just saying
sophistication in my judgment, if it's a
50/50, I guess, I'd spend the money and make
it go away.
And I'd just open that conversation up.
COMMISSIONER SORREELLI: The only way
you can make it go away is to make sure he
doesn't come back to our town.
MAYOR VORESS: When I say --
COMMISSIONER SORREELLI: What?
MAYOR VORESS: When I say --
MR. CORMAN: We can get that to be part
of the deal.
COMMISSIONER SORREELLI: What?
MAYOR VORESS: When I say --
MR. CORMAN: We can get that to be part
of the deal, if we cut the deal.
MAYOR VORESS: When I say make it go
away, I say accept this offer.
MR. CORMAN: If their offer reflects
that we are not going to reinstate him. I
had made it clear to them that the, that I
couldn't speak for the Commission, of
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course, but I told them given the morale
problems that Howe had and his return would
create, it was my guess that that would be a
non -starter for settlement discussions. So,
you will see and if you look at the
settlement proposal, they do not request
reinstatement.
What he asked for, he wants to be able
to resign rather than have been fired. So,
the deal would be we would hire him back for
a day. We would rescind the termination.
He would be on duty, but off the premises --
MAYOR VORESS: On leave.
MR. CORMAN: -- for one day. He would
tender his resignation during that day.
MAYOR VORESS: Actually, he would
tender his resignation with any signature.
MR. CORMAN: Yeah, we would have the
document in escrow.
VICE MAYOR REID: This is a
simultaneous transaction.
MR. CORMAN: No, we would have the
document in escrow. He would never actually
show up in the Town Hall, but the records of
the Town would reflect that he was on the
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books again for one day.
COMMISSIONER HILL: Why is that
important?
MR. CORMAN: Apparently, he wants to be
able to represent to other departments, if
he's looking for work again, that he
resigned, not that he was fired.
CHEIF CERVASIO: Right, because right
now he was listed as - when he was separated
I had to file with FDLE, it's called a
separation.
Right now he was terminated for
violation of Town rules and regulations.
All right. I think what he's looking for
now is to get reinstated for the one day,
come back and then put in a resignation,
which I would send to FDLE stating that he
resigned - he was reinstated and he
resigned.
VICE MAYOR REID: Is the original
termination, firing expunged, that it's not
visible?
CHEIF CERVASIO: I don't know what FDLE
will do with do with theirs.
VICE MAYOR REID: I have a couple of
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questions.
MR. CORMAN: Yeah, we're not going to
have any responsibly vis-a-vis FDLE. He can
tell them whatever he wants to tell them.
But within our own Town record we would
rescind the resignation - I mean, the
termination, accept the resignation and he'd
be done. We'd exchange mutual releases,
which means he wouldn't sue us again and we
couldn't sue him.
And then he wants $42,500, which is one
year's salary and a 401K contribution of
4,250, which is 10 percent, which, I guess,
he contends is the Town's standard 401K
contribution, attorney fees and court costs
of twenty-five grand.
Now, that's not to say that you
couldn't go back with a lesser number and
see if he wouldn't accept that in lieu of
this settlement demand, but obviously the
least risky thing to do if you don't want to
run the risk that he has a change of heart
is just say, fine we accept the proposal and
we'd be done with it, other than just
preparing documentation to reflect the
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transaction.
Now, let me tell you that I was sent
here today to convey to you, in part, Tom
Slimey's (phonetic) feelings that - and
obviously Tom and I do not set policy. It
was not our decision to fire Howe. We
expressly discussed with the town manager
and the chief whether there were lesser
punishments that could have been attempted.
And their feeling was that they had
gone down the road with him on these types
of issues before and that the probation was
a series shot across the stern or the bow to
warn him as to what his behavior needed to
be. And if that wasn't going to get his
attention and get him to fly right, nothing
was.
And obviously, the chief had spent many
hours conferring with Howe over these
issues, trying to get him to behave in a
more rational way, but Howe continued to
insists that he would ferret out all this
wrongdoing, imagined or real.
But Tom feels that you have a group of
employees that watch what you do in these
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situations, and that by settling these types
of cases you send a very negative message to
the employees that encourage them to file
spurious claims against the Town.
It was not our decision or
recommendation or the Commission's to settle
the Corsino case. What happened in the
Corsino case, you had an officer who
totalled a motor vehicle on a couple of
occasions, who was upset that he got
demoted. And it was my attitude that he was
lucky that he still had a job. And I would
not have settled that case or recommended
settlement on a merits basis.
And I guess, that becomes the issue.
If you're asking me on a merits basis do I
think that the law should tell Sergeant Howe
under this set of circumstances his actions
are worthy of protection. My response,
looking at the statute and recognizing I'm
limited by the plain language of the statute
- and we may all have different opinions
about what that plain language means.
I mean, the level of debate now about
what the English language means - thanks to
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the President - is probably at an all time
absurd and historic high. So, guess we can
argue about the meaning of any word.
But when I look at the statute, it
appears to me that it's supposed to prevent
a lot more serious conduct in a more
appropriate fashion than what Sergeant Howe
had trotted out.
Basically, what we have here was a
person who was himself in trouble and as he
was going down, to raise a shield for
himself threw a bunch of mud at a bunch of
other people. I don't think that's how the
statute is intended to be implemented and
used.
I don't think the things he's
complaining about fall within the scope of
the type of stuff that's supposed to be
protected. I think the fact that most of
this was not properly investigated and
substantiated reflects that these are really
not the types of things that you necessarily
want to protect.
And on balance, I think Howe
demonstrated himself to be a pretty poor
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supervisor. And I certainly understand how
the chief and the former town manager felt
about what he was doing to the department.
I don't know whether lesser punishment would
have worked or not.
I have no opinion as to whether or not
it should have been tried or not. My sense
is that you had a lot of problems and that
the officers were at the point where there
were concerns that they'd come to blows with
each other because of what was going on.
And obviously, that wouldn't be a good
situation at all.
The one thing all of the officers were
agreed upon, was Howe was the cause. And
the one thing that they're all agreed upon
now is that the department is a much better
and nicer place to work. They look forward
to coming to work and they didn't before.
So on balance, I feel very reluctant to
feel that we should give any money to
Sergeant Howe. And on the other hand I
can't ignore the economics of litigation,
which is business judgment matter. And I
think if you really look at, you have the
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economics of this one case, but you also
have to look at the context of what impact
will this have on the rests of the
employees.
COMMISSIONER HILL: How much money
would you say that we have --
MAYOR VORESS: Mike, may I recess this
meeting for a minute?
COMMISSIONER HILL: Oh, yeah. Okay.
MAYOR VORESS: And we'll be back in a
minute.
COMMISSIONER HILL: Okay.
MAYOR VORESS: Unless -- Is it
necessary to recess if I leave for a minute?
MR. CORMAN: Well, we really should
stop the meeting and come back.
MAYOR VORESS: Okay. Let's recess the
meeting for a comfort break. Okay.
(Thereupon, a brief recess was taken, after
which the following proceedings were heard.)
MAYOR VORESS: Okay. We're back.
COMMISSIONER HILL: Okay. Larry, you
were going to give us a number on what it
would take, what it's going cost the Town to
take this thing to trial and probably
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appeal.
MR. CORMAN: Right. Now, one thing to
remember in litigation, there's two sides
and I can't control how much or how little
Howe's lawyers do.
At this point they have scheduled the
vast majority of the depositions that have
been taken. My belief is that they're going
to depose everybody and anybody that they
can find who may have any information about
the police department, including citizens of
the town. And some of them have already
been placed under subpoena.
I would guess that there's no way we're
going to finish it for less than another
thirty grand. And odds are we can easily
spend as much as their demanding in the
settlement, especially if we have to go hire
outside experts. And we also need to
recognize the possibility of an appeal.
COMMISSIONER HILL: One other question.
This is a question directed to the
chief.
Chief, what do you think about the
effect that this settlement is going to have
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on the other officers?
CHEIF CERVASIO: The settlement itself?
COMMISSIONER HILL: Yeah. How do you
feel about that?
CHEIF CERVASIO: Their way of thinking
is they don't want Sergeant Howe back on the
job. And they feel that if it should go to
court, you don't know how the court's going
to go, or how the jury's going to lean.
The problem with them is that they're
afraid he's going to come back, reinstated
as a sergeant and just continue doing what
he has done in the past. And that's a prime
concern with them right now.
As far as settling the case, they have
no thoughts about it one way or the other.
They figure the insurance company's paying
it, or whoever is going to pay it. But
their main concern is that Sergeant Howe
gets to come back to the job and causes the
problems that he has in the past.
MR. CORMAN: I don't want to cast any
negative aspersions on the morals of
anybody, but I would just point out if
you're an employee and your employer is
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paying out large severance packages to
people who weren't good employees, because
they had the ability to file a lawsuit, what
you're saying is, boy, that's great and when
it's my turn I'm going to do the same thing
and I'll look forward to getting my check,
too.
So, you just need to recognize that the
employees probably won't mind if we pay a
large settlement to Sergeant Howe, because
they're going to look at it as something
that they themselves -- Now, I'm sure we're
going to have some good employees who are
going to resign or retire and not file
unsubstantiated claims against the Town.
But you also have to recognize that not
everybody is a scrupulous person and if
there's an ability to get thirty, fifty -
$70,000 by drumming up some bogus stuff and
filing a lawsuit over it, human nature is
such that we can effectively --
COMMISSIONER HILL: My question was
directed to the chief. And that was from
the chief's prospective for him, as the
manager of the police department; does
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settling this case impact his ability in a
negative way of --
CHEIF CERVASIO: No. No.
VICE MAYOR REID: I have some
questions.
Are any of these claims valid or
provable?
MR. CORMAN: Well, I mean the cops --
VICE MAYOR REID: Go ahead. That's a
question; are any of them valid or provable
in any way?
MR. CORMAN: I mean, you know, it's
going to be this, there's something to each
of them. But I shouldn't say, to each of
them. To some of them there's some grain of
truth out of which a lot of supposition then
follows.
VICE MAYOR REID: I'll tell you where
I'm coming from with that question. I don't
know whether he's approached any of the
members of the Commission, he's approached
me on a number of occasions.
He has flatly said to me he did not
have any proof, he had citizen backing and
there were citizens perfectly willing to
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come forward and agreed --
MR. CORMAN: I wish he would have
identified them for us.
VICE MAYOR REID: He said there was one
citizen that was aware of the photography of
the bicycle people.
Now, is it apropos of the following
thought: I keep a day book, which is
effectively most of my phone calls and
notations; is there a similar diary or day
book that the department has of verbal
exchanges, rather than form reports --
CHEIF CERVASIO: No.
VICE MAYOR REID: -- that the court
could come in and get?
CHEIF CERVASIO: No.
VICE MAYOR REID: So, all of these
verbal reports are just that?
CHEIF CERVASIO: Everything is on our
log sheet. Every officer makes a log sheet
at the end of his tour. That's it.
VICE MAYOR REID: But, I'm speaking of
these conversations about --
CHEIF CERVASIO: Amongst ourselves?
VICE MAYOR REID: Yeah.
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CHEIF CERVASIO: No.
VICE MAYOR REID: And why did it take
so long to come to a head?
At some point, it was obvious, that he
was an instigator - here, I'm bringing up a
six-month old piece of business.
Do it once, shame on you. Twice, shame
on me. And three, I've got a real serious
problem. You have seven causes of action
here that he's claiming. Why did it take to
get to seven, to what we've got, that he
wasn't called to task before?
CHEIF CERVASIO: Like I said, these
allegations that Sergeant Howe presented to
me were not made known to me until November
22nd, after I had given him his written
reprimand.
All of these allegations that he
presented in this memo to me were things
that he never presented to me. The only
thing he ever presented to me was what Brine
Wallin brought to my attention himself about
Brian missing the call. Sergeant Howe never
brought that to my attention until about six
months later.
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is 25
The one with the television playing
that he told me about, that was brought to
my attention several weeks later, which I
acted upon.
All of the other ones -- The sexual
harassment complaint against Corsino was
never brought to my attention prior to
November 22nd. At which time, when I found
out about it I called Eileen Tuckman in, the
fire fighter, and asked her about it.
She gave me a written statement stating
that this never happened, it was never
discussed with Sergeant Howe.
The thing with Angelillo with the
female drunken - alleged drunken driver was
never brought to my attention by Sergeant
Howe until the November 22nd memo, which I
brought to Angelillo --
VICE MAYOR REID: What appears to be a
history really isn't a history, it's a
one -day event?
CHEIF CERVASIO: It's a one -day event
all of these things were brought to my
attention.
VICE MAYOR REID: I'm satisfied.
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COMMISSIONER AUGENSTEIN: May I?
MAYOR VORESS: Yes.
COMMISSIONER AUGENSTEIN: I have two
things I'd like to bring out.
The first one is, I feel this is a
bitter pill you take when you're sick - it
don't taste good and you don't feel good
when you take it, but it has to be taken to
fix something.
And secondly, we do have a financial
responsibility to our citizens. And I think
that I would follow the recommendation of
Mayor Voress and vote for paying it off.
MAYOR VORESS: My discussion has
nothing to do with the way it was prosecuted
or what the police chief or the town manager
did. My basis is really the financial
aspects of what is going on and to get the
issue to go away. And I think that's what
Dave said about taking a bitter pill - we
don't like it.
In answer to the - I know that the Town
Attorney feels that we may be giving the
wrong signal, and he's certainly entitled to
that opinion, but my view is any time you
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have a lawsuit you deal with it on a basis
of the facts of the case at that time.
If somebody wants to misread what we're
doing and saying that we're, you know, we
have an open checkbook any time you wanted
to do it, I'm not sure the next time it
comes up that the next commission will make
a similar judgment, because the facts will
be different.
So while I understand that people might
say that, I think that the reality is that
anyone that wants to file against us on that
basis, if there is no validity to it they
are not going get anything and they could
get sued for bringing false charges against
us.
So, let me ask Larry a question.
Larry, it seems to me that what you are
looking for today at this executive session
is to have the Commission understand all of
the aspects of this, what the pluses and
minuses are, our chances one way or the
other.
And let us think about this a little
bit, share back and forth the experiences
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and the thoughts that each of us have --
MR. CORMAN: Don't share them in a
public meeting.
MAYOR VORESS: No, I'm talking about in
this particular executive session.
MR. CORMAN: Both today and any
settlement has to be authorized in an open
meeting.
MAYOR VORESS: And then at a subsequent
meeting is for us to have a meeting -- This
is the question I want to ask you, since
there is no time frame on this.
MR. CORMAN: He can withdraw it
tomorrow. The letter reflects that the
legal fee amount will go up if we don't
settle it. There are things scheduled to be
done in the case.
They, for example, owe me all of their
documents in responses to interrogatories
that we issued. I like to develop my
information and then take the person's
deposition. They've been taking depositions
first and getting documents later.
Different lawyers - different styles.
But they have a bunch of discovery
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obligations that are overdue and they're
supposed to be sending them in or we have to
move to compel. And we have depositions
scheduled later in the month.
So, you know, I would also point out
that this is their demand. There is nothing
to prevent us from coming back with a lesser
number, which is typically what I would, in
fact, do for a client. I would come back
with a number less than what they want, even
if I have settlement authority, to try to
save some money in the settlement
negotiation process.
Obviously, whatever you authorize me to
take is going to be done in public meeting,
so they're going to know about it through
the media. So, it's not going to be any
great secret in terms of what happens at the
settlement meeting.
Although, I have a certain amount of
authority and put that on the table. I
would suggest that - what I would recommend
really is to come back with some lesser
number that is still close enough to their
number, so that they're likely to take it.
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And then if they reject that, we can always
come back and have a meeting and authorize a
larger number.
But, you know, typically people are
willing to take a little bit less than
they're demanding in their first letter and
that's what we have from them.
MAYOR VORESS: That's what I was
thinking about, the process by which we
ought to do this.
It seems to me that what we ought to
consider, as a matter of procedure, that
when we are all satisfied that these
discussions that are occurring this morning
have reached a final end, everybody is
satisfied, then it would seem to me that we
have two options: I can call a special
meeting - this is Tuesday - I can call it
some time this week.
I think we would have to pose it --
MR. CORMAN: Yes.
COMMISSIONER SORREELLI: Mr. Mayor, why
can't we make that decision today?
MAYOR VORESS: Because any executive
decision --
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COMMISSIONER SORREELLI: Sorry?
MR. CORMAN: Any settlement has to be
approved in a public meeting. The public
has to be aware of it and given an
opportunity to comment on it, then you can
approve it.
We can discuss settlement, but we
cannot approve one today.
MAYOR VORESS: We can't approve it.
MR. CORMAN: You may recall with the
EEOC matter, we had the authority to engage
in settlement negotiations, but not to agree
to a specific package.
We were basically going to go there,
get more information. Any final deal would
have been done in a public meeting.
MAYOR VORESS: So, what we would do,
gentlemen, is agree each one of us have
enough information to make a decision.
I would call a special meeting and I
would suggest that the Commission - I have a
sense here as to sit and decide what they
want to do. I'll call a special meeting
some time this week. We would have a vote
of the Commission to decide what they wish.
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COMMISSIONER SORREELLI: I can't do it
this week.
MAYOR VORESS: Pardon?
COMMISSIONER SORREELLI: I can't do it
this week.
MAYOR VORESS: When are you leaving?
COMMISSIONER SORREELLI: Tomorrow
morning.
How about the 23rd, 24th --
MR. CORMAN: Whatever day you want,
I'll make a point of being here.
MAYOR VORESS: Well --
VICE MAYOR REID: How strong is this
letter and is it susceptible to being
withdrawn?
MR. CORMAN: Well, they can call me
today and say the letter is off the table.
I don't think they will do that, I think
they want the settlement.
MAYOR VORESS: I would suggest, with
all due respect to you John, with this
meeting you got - I sense the Commission is
of a general mind of what they want to do
and I'll go ahead and call a meeting. If
you weren't going to be here and if you had
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no objections to that --
COMMISSIONER SORREELLI: I have no
objections.
MAYOR VORESS: And we would have a
meeting some time this week, call a special
meeting and deal with this issue and give
Larry whatever instruction the Commission
wishes to do.
I guess, I'm allowed to say what my
sense of the Commission is in this meeting
or not?
MR. CORMAN: I mean, we can all gather
some sense from the comments that people
make as to how they may be leaning.
Obviously, we don't want to articulate
exactly what we want to do.
MAYOR VORESS: My senses is that the
Commission wants to make this go away.
COMMISSIONER HILL: I have a --
COMMISSIONER SORREELLI: Absolutely.
COMMISSIONER HILL: -- you know one of
the things that with - you know, I agree
with your comment if this thing goes before
a jury. The jury's going to say, regardless
of who said what, here's this guy, he was
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fired for being a tattletale, looks like a
whistle blower to me. And that's - I agree,
that likely can happen.
The other issue is that Bill Howe, like
any other employee, did some things really
well and some things not so well. And as
far as the officers on the force, there
probably wasn't anybody - but the citizens
of the town liked Bill Howe.
MAYOR VORESS: He's well liked.
COMMISSIONER HILL: He had eight years
of service. I think that a normal severance
package in private industry, even severance
for downsizing is generally at least one
month severance pay for each year of
service. So, that would take Howe right to
eight months just by normal standards.
MAYOR VORESS: Sure.
COMMISSIONER HILL: Doesn't always
necessary apply in this situation, but if he
were in private industry, I think he'd get
it.
MAYOR VORESS: Sure.
VICE MAYOR REID: If this goes to court
and this can of worms is opened, the dollars
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is whatever they come out to be?
MR. CORMAN: I'm sorry, Tom.
VICE MAYOR REID: Could his award be
greater than what is being presented?
MR. CORMAN: Oh, yeah. He could get
two years, up to two years salary.
VICE MAYOR REID: Which would be eighty
grand to him.
MR. CORMAN: Right. It would be
double. Plus, he would get interest on that
money and the legal fee amount if he was
successful --
VICE MAYOR REID: That's higher.
MR. CORMAN: Yeah, that could be,
obviously, higher.
I mean, we don't have any exposure here
for emotional distress, punitive damages,
things like that. But you still - you have
some economic benefits that are going to get
valued and priced, and that's going to be
potentially - I could easily see up to
$100,000 in damages. And then, his legal
fees could be fifty to a hundred grand.
VICE MAYOR REID: A hundred grand.
MR. CORMAN: It all depends on the
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number of witnesses, how long is the trial,
how much fighting do we have over jury
instructions - I mean, there's a lot of
things that could happen between now and
getting through the trial. And you never
know how much delay is going to be billed
into the system that increases the cost.
VICE MAYOR REID: So, if I put your fee
in there, that would be a quarter million
dollars?
MR. CORMAN: I would be surprised -
well, when you work in my legal fees too and
we lost, absolutely.
MAYOR VORESS: Okay. I see.
If we lost. I don't think we would
lose.
COMMISSIONER SORREELLI: Larry, how
much time do we have to --
MR. CORMAN: There's no time frame set.
But like I said, if he wants to call me
today and say the proposal is off the table,
then we wouldn't have anything to accept.
It's not to say that we couldn't make
our own settlement proposal, but this is
what they have offered to settle for right
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now.
MAYOR VORESS: Okay. I sense that --
John, if you have no objection.
COMMISSIONER SORREELLI: I can cancel
that meeting. It's no big deal.
MAYOR VORESS: I don't think there is
any need to do that - it's your choice. I
personally believe that we ought to go ahead
and have a meeting this week and get on with
the settlement.
Does everybody --
MR. CORMAN: Well, let's not agree on
whether we should set. We'll agree we
should get together and meet and resolve it.
COMMISSIONER AUGENSTEIN: What date?
MS. TRINLEY: Sir --
MAYOR VORESS: Can we do that this
week?
MS. TRINLEY: We're coming down to the
end of the week you would agree, right, so
tomorrow - Wednesday there's a planning
meeting at 9:30 in the morning. So, if you
wanted it tomorrow, you would have to move
real fast, because I would have to get
advertisement.
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MAYOR VORESS: Could we post a notice
in the Boca Reporter in the morning?
MS. TRINLEY: Perhaps, if I can get to
the news room.
MAYOR VORESS: Well, what time are you
leaving?
COMMISSIONER SORREELLI: I can leave as
late as I have to.
MAYOR VORESS: Everybody else free
tomorrow?
COMMISSIONER SORREELLI: Tomorrow
morning at 9:30 is fine --
MS. TRINLEY: No, the planning board
meets tomorrow at 9:30.
MAYOR VORESS: We'll take care of the
planning board.
COMMISSIONER SORREELLI: We have enough
time to put a notice up?
MAYOR VORESS: My question is: Is that
enough time to put a notice up?
MS. TRINLEY: I don't know, sir.
Can I just go to the legal offices?
COMMISSIONER AUGENSTEIN: What are we
discussing tomorrow?
MAYOR VORESS: Discussing what we want
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to do about this offer.
COMMISSIONER HILL: It's our public
meeting.
MAYOR VORESS: We can't take formal
action today.
COMMISSIONER HILL: We can't take
formal action, but I think we all are
somewhat in agreement.
MAYOR VORESS: Yes.
VICE MAYOR REID: Can we take a vote
now and --
MAYOR VORESS: No. You have to --
COMMISSIONER SORREELLI: So, we're
talking 9:30 tomorrow morning; is that the
meeting?
MAYOR VORESS: Let me see about what -
what, when do we have -- How much time do we
have to post a notice?
MS. TRINLEY: Well, Larry and I were
just having a discussion about the legality
about publishing a display versus a legal
ad. A legal ad I have better shot of
getting it in tomorrow. A display ad, I'd
have to check.
MR. CORMAN: I have to double check the
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statute.
MAYOR VORESS: We can't make it
tomorrow we can make it on Thursday.
COMMISSIONER HILL: Thursday I'll be
out of town.
MAYOR VORESS: So, we can't do it
Thursday.
COMMISSIONER AUGENSTEIN: Isn't that
Thanksgiving?
VICE MAYOR REID: No, that's the
following week.
MAYOR VORESS: Okay. So, I guess we're
on the hook either - Wednesday looks like
it's pretty tight. We only have half a day
today.
COMMISSIONER AUGENSTEIN: Thursday?
MAYOR VORESS: Yeah, let's make it --
Mike's going to be out.
Let's make it Friday.
MR. CORMAN: Of this week?
MS. TRINLEY: Excuse me, please.
That's the day Ben Siger (phonetic) is
coming in. I don't know if that has any
bearing on anything.
COMMISSIONER SORREELLI: Why can't we
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leave it for Monday? Everybody will be
here.
MAYOR VORESS: All right. Monday.
COMMISSIONER SORREELLI: Larry, how
about you?
MR. CORMAN: I can be here Monday.
What time?
MAYOR VORESS: 9:30, is that okay?
COMMISSIONER AUGENSTEIN: Monday at
what time? How about Tuesday?
MS. TRINLEY: Tuesday is the regular
workshop meeting. Plus, we have a special
meeting after that to ratify the contract.
MR. CORMAN: So, Monday at what time?
COMMISSIONER SORREELLI: 9:30.
COMMISSIONER HILL: Monday at what
time?
MAYOR VORESS: 9:30.
COMMISSIONER AUGENSTEIN: Monday's a
bad day for me.
MR. CORMAN: Can you make it Dave?
MAYOR VORESS: Okay.
COMMISSIONER AUGENSTEIN: If I have to,
I'll just cancel --
MAYOR VORESS: Okay.
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MR. CORMAN: Before we break, I do want
to make sure that everyone is clear, that I
personally believe we have a winable
position. And that I understand what
motivated the chief and the former town
manager.
And given the attitude of your rank and
file, your choice was basically to fire
everyone in the department and start all
over again building around Sergeant Howe or
to get rid of Sergeant Howe. But that's
basically the bottom line of where the Town
was at that point in time.
COMMISSIONER AUGENSTEIN: I have a
problem with the 23rd.
MAYOR VORESS: Well, we're going to
have to go Dave. And I know - I know how
you want to vote, I think.
You're tied up all day?
COMMISSIONER AUGENSTEIN: Morning.
MAYOR VORESS: Just the morning?
COMMISSIONER AUGENSTEIN: Why can't we
have it in the afternoon?
MAYOR VORESS: Okay. How about the
afternoon for everybody?
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COMMISSIONER HILL: On Monday the 23rd?
I don't have my calendar, I would
assume that's okay.
COMMISSIONER SORREELLI: No problem.
MR. CORMAN: What time in afternoon?
MAYOR VORESS: 1:30.
MR. CORMAN: I'll double check that.
1:30.
VICE MAYOR REID: I will look at my
calendar.
MAYOR VORESS: Okay. 1:30.
I think it's important that we move
right ahead, because activities are going on
and we're going to get more charges. And I
think we ought to move.
COMMISSIONER HILL: This meeting really
shouldn't take very long.
MAYOR VORESS: It shouldn't take ten
minutes.
COMMISSIONER AUGENSTEIN: This wasn't
going to take long and we're here almost two
hours.
MR. CORMAN: This is a substantive
discussion. It was important for you to
understand the nature of the complaint and
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surrounding facts so you can more accurately
evaluate the Town's risk, the Town's legal
exposure, the Town's positions and decide
what to do.
MAYOR VORESS: For the record, Larry,
let me say it's my sense and my real belief
that you have done a good job. This
decision has nothing to do with the legal
work that you've done, nor how Tony has
conducted himself.
This is a decision that the commission
will make based on an economics, what is
going on and to make the problem go away,
not seeking blame, or any other thing.
That's not the purpose of this discussion.
MR. CORMAN: I appreciate those kind
comments, but I'm always reluctant to give
away money to those who don't deserve it.
MAYOR VORESS: I understand.
Is everybody satisfied we have
exhausted this topic?
Then I will close this executive
session.
MS. TRINLEY: Okay. I need to call
Jane back in.
ins_��i���:a��as�:a�s�:a��■■►[e�-i�:a�����■►[����-�.���s�Q:z:�r���
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MAYOR VORESS: Yes, we need to call
Jane back in.
We have to close this on the public
record and then I have to close the meeting.
COMMISSIONER HILL: Larry, were you
surprised by the sizes of the offer?
I thought by the size of the offer --
MR. CORMAN: Especially since we took
reinstatement off the table, I think that
was a low -ball offer. I think they wanted
to settle it.
My - Howe mentioned in one of the
series of depositions how the termination
came at bad time in his personal life. He
has a child in college. And my sense is
that he is - that's okay - my sense is that
he's suffering some economic distress and
this settlement money would mean a lot to
him.
COMMISSIONER AUGENSTEIN: I saw him
Saturday at Builder's Square.
MAYOR VORESS: We have to closed the
executive session. We're ready to --
THE CLERK: Just a moment, please.
Just a moment, please.
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You may begin.
(Thereupon, the following proceedings were
heard before the Public.)
MAYOR VORESS: The information and the
discussions held at this meeting have been
completed. And I'll accept a motion for
adjournment.
COMMISSIONER SORREELLI: I second the
motion.
MAYOR VORESS: All in favor?
THE COMMISSION MEMEBERS: (In unison)
Aye.
MAYOR VORESS: We stand adjourned.
(7hereupon, the executive session was
concluded.) ,
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COURT CERTIFICATE WITH ACKNOWLEDGMENT
STATE OF FLORIDA
COUNTY OF BROWARD
I, JOANNE S. SAPONE, Registered Professional
Reporter, certify that I was authorized to and did
stenographically report the foregoing proceedings
and that the transcript is a true and complete record
of my stenographic notes.
DATED this 19th day of November, 1997.
Jo n e S. SRP
Not ublic for the State
apone,
of Florida, at large.
My commission expires:
March 2, 2001
.0V .
Joan. SSapone
* My Commission CC625338
4 �� Expires March 02, 2001
��OF 0#