Thursday, Jan. 24, 08

Inside Man

Miami city attorney Jorge Fernandez has a history of abusing the public’s trust. So why haven’t commissioners done anything about it?

By Erik Bojnansky

Miami commissioners have done nothing to stop City Attorney Jorge Fernandez’s abuse of power. Photo by Richard M. Brooks

What should elected officials do when the man hired to give legal advice to the city is under investigation for breaking the law?

That’s the dilemma Miami commissioners have been faced with since the Miami-Dade State Attorney’s Office began investigating City Attorney Jorge Fernandez in November for improperly billing the city for expensive dinners and parties.

Fernandez charged the city $1,539 for a party he threw at The Rusty Pelican for his son’s birthday, even though he had already maxed out his $10,000 a year expense account for lunches and dinners, according to sources familiar with the investigation. He billed the city another $300,000 to remodel the City Attorney’s Office, which included removing the law library to make way for an entertainment center with two large plasma televisions, ceiling speakers and DVD players. He charged the city more than $6,000 for a trip that he and Deputy City Attorney William Rossi made to Honolulu for an annual American Bar Association meeting; $445 for a “Screenwriting for Lawyers” class that Rossi attended; and more than $110,000 in “outstanding performance lump sum” payments to himself and his legal staff.

“They would not have been done if they had not been necessary,” Fernandez said of the expenses.

Since the city rehired him as its attorney four years ago, Fernandez’s office has been wracked with controversy — from questionable expenses billed to city taxpayers, to legal decisions that cost the city millions of dollars and angered commissioners, to allegations of racial prejudice. And, so far, the Miami City Commission has done nothing about it.

“No one wants to deal with this,” said an adviser to one city commissioner, who asked not to be identified.

The Miami City Commission usually evaluates the city clerk and the city attorney immediately after each election. But that task fell by the wayside after the Nov. 6 election — until Fernandez placed City Clerk Priscilla Thompson’s pay and benefits package on the Jan. 10 agenda.

Commissioners unanimously voted to rehire Thompson, who has been city clerk since 2002, and to give her a $9,959 pay raise, bringing her annual salary to $209,146, with the promise of another $9,959 raise in 2009, health benefits, a $200 monthly cell phone allowance, an $800 a month car allowance, a $20,500 a year deferred-compensation package and a severance package of six months’ pay.

“She has been a gift to me helping get through the key issues,” said Commissioner Michelle Spence-Jones, who also is under investigation by the Miami-Dade State Attorney’s Office.

While all five elected officials complimented Thompson, City Attorney Jorge Fernandez twisted in his chair. He still had not put his own contract on the agenda and no one bothered to ask why.

Fernandez’s last salary package was approved in 2005. He was given a base salary of $218,220, two $10,000 incentive payments, a 10 percent salary increase that was paid in September 2006, a $10,000 annual expense allowance, $20,000 a year in deferred compensation and a severance package of six months’ pay.

Fernandez initially said he would place a resolution to renew his employment package on the Jan. 24 agenda (city officials decline to call it a “contract”), but in a later interview said he may not because of the numerous issues facing the city of Miami.

“I have a port tunnel to build, museums to put in the ground, a baseball stadium, a soccer stadium, there is the whole issue of the streetcar [system], a loan for Parrot Jungle, Miami 21,” Fernandez said. City business occupies “99 percent of my time and my thoughts.” The criminal investigation, which Fernandez refused to comment about, and criticisms about his office “take up less than 1 percent,” he said.

Commissioner Tomas Regalado, who has sat on the dais since 1996, said appointing or rehiring the city attorney after an election is not just tradition — it’s required by law.

“According to the charter, [after] a general election, the contract of the city clerk or the city attorney is supposed to be in the agenda [in the first meeting following the election],” Regalado said.

Fernandez, however, disagreed. “The requirement is not so strict,” he said.

Section 4 of Miami’s city charter only requires that the City Commission elect a city clerk or city attorney — it never specifies when. (The city manager is selected by the executive mayor and ratified by four-fifths of the City Commission.)

At any rate, there is nothing in the charter preventing commissioners from bringing up the issue. Two weeks ago, Commissioner Marc Sarnoff said he planned to do so at the Jan. 24 meeting. Now, he’s not so sure. “I was intending on doing that, but we’ll see,” he said. “I’m waiting for whatever it is to be revealed to be revealed.”

Regalado, for one, admitted that he would rather not decide on Fernandez’s fate during an ongoing investigation.

“What would you do? Would you fire the guy because he is under investigation?” Regalado asked. “I certainly would not want to renew his contract while the investigation is going on, that’s for sure.”

Still, a number of other criticisms facing the Miami City Attorney’s Office, including accusations of racism, are further complicating matters.

Assistant City Attorney William Juliachs wrote a memo on New Year’s Eve urging staff to participate in a football game against the County Attorney’s Office to raise money for Camillus House. But a quote that he included in the memo offended many of the city attorney’s African-American secretarial staff and others in City Hall.

“Since this is my final e-mail announcing practice, I will favor you now with the quote which always struck me as, well, comical [from Voltaire’s Candide]: ‘I would like to know which is worse: being raped a hundred times by negro pirates, having a buttock chopped off, running the gauntlet of the Bulgars, being flogged and hanged in an auto-da-fe, being dissected, rowing in a galley, in short, suffering all the misfortunes we’ve all suffered, or being stuck here doing nothing?” he wrote.

Those familiar with Juliachs describe him as a well-meaning individual, fond of quoting historical and literary figures. Fernandez said the issue has been “handled internally.”

However, this isn’t the first time charges of racial bias were levied against the office. The last time such accusations were made, they were directed at Fernandez.

Attorney Reginald Clyne pointed out problems in an October 2005 Miami Times column headlined “Something don’t smell right at the city of Miami attorney’s office.”

“It is therefore disheartening to learn that the training ground for some of our greatest leaders — the city of Miami attorney’s office — is apparently reversing its position of providing opportunity to black lawyers,” Clyne wrote. “Since the arrival of the new city attorney, Jorge Fernandez, in September 2004, there has been a mass exodus of black attorneys.”

By February 2007, only one of the City Attorney’s Office’s 21 lawyers was black. “You’re going to work on that, right?” Commissioner Spence-Jones asked Fernandez in a meeting at that time. Fernandez replied that he was “working on it.” 

“Three African-American attorneys we had recently left for jobs in the private sector and are now making twice as much as we were paying them,” he said. “It’s an issue of supply and demand.”

Today, “four or five” of the city’s 25 attorneys are black, Fernandez said. “We have been actively recruiting and we continue to actively recruit,” he said.

Fernandez worked as a Dade County Schools administrator before receiving his law degree from the Wayne State University School of Law in 1979. Although he specialized in family law, the city of Miami hired Fernandez as an assistant city attorney in 1982. By 1988, he became the city’s chief city attorney, a position he held until 1991.

That year, Perry Anderson, the Miami Police Department’s first black police chief, retired and filed a lawsuit against the city and Fernandez for discrimination. Anderson said the city refused to pay for his legal counsel to fight lawsuits that were filed against him personally for issues stemming from his role as police chief, even though the city had done so for previous police chiefs. In 1998, a jury agreed with Anderson and ordered the city of Miami to pay him $2 million and Fernandez personally to pay $500,000. Later that year, the case was settled and only the city had to pay, $330,000.

Fernandez left Miami in 1991 and accepted a job as Sarasota County’s first county attorney. Four years later, Fernandez applied for the job of Dade County manager, but insisted that commissioners not select him because of his ethnic background, which he said, turned off some Cuban-American officials.

In a January 1995 interview with Miami New Times following his rejection for the county manager slot, Fernandez claimed he had left Miami in 1991 because he was tired of the ethnic politics. “I left at the peak of my career,” Fernandez told writer Jim DeFede. “I left because I was sick and tired of Dade County. I was tired of people thinking I was selected [as] Miami’s city attorney simply because I was the next Cuban in line.”

In September 2004, the city of Miami rehired Fernandez as the city attorney.

Problems soon followed.

In one of his first acts as city attorney in October 2004, Fernandez approved a settlement agreement meant to end a class action lawsuit in which 80,000 property owners sought a refund of fire rescue fees they were charged in the late 1990s. The settlement, drafted by then-Assistant City Attorney Charles Mays, errantly gave $7 million to the seven named plaintiffs, rather than the entire class. A judge nullified the settlement in 2006 at the request of both the city and Richard Williams, a new lawyer representing Miami property owners. The Florida Bar Association considered revoking the law licenses of Fernandez, Mays, Miami Mayor Manny Diaz and the plaintiff’s attorney, Hank Adorno.

“I have never litigated a class action [suit],” Fernandez wrote to the Florida Bar Association. “I was unfamiliar with the subject case.” Although Mays provided memos detailing the terms of the settlement before the commission approved it in November 2004 (Mays claimed he was acting at the direction of then-City Manager Joe Arriola), Fernandez said he did not know that the money was given to only a handful of individuals until January 2005. “At that point, I hired outside counsel and instructed them to do everything they could legally do to set the settlement aside.” In 2007, the Florida Bar dropped its case against Diaz and Fernandez. It is still investigating Adorno, Mays (who is now the attorney for Miami’s Civilian Investigative Panel) and former City Attorney Alejandro Vilarello. The city settled the class action suit in September 2007 for $15.5 million.

Fernandez has been blamed for other problems, too.

In February 2005, the Miami City Commission moved to shut down several assisted living facilities run by Family Boarding Inc. in Shenandoah. Although Fernandez recommended against the action, he did not inform city commissioners that they could be personally sued. When a lawsuit was filed against all of the commissioners, they settled with the company, though some elected officials resented Fernandez for not warning them of the consequences, one commission adviser told the SunPost.

The commission was forced to settle another lawsuit in November 2006 with Hammes Sports Development of Florida for $750,000. The city had moved to dissolve Hammes’ contract to manage a $150 million Orange Bowl renovation project when the City Attorney’s Office discovered it had been “tricked” into signing an agreement with a local subsidiary of the main Wisconsin company with no assets, rather than with the company itself. Hammes sued the city for more than $2 million.

To convince the City Commission to settle the case, Fernandez said the city could lose as much as $14 million.

“He [Fernandez] is trying to protect his ass,” Arriola told the SunPost in November 2006. “His department made a mistake and now that I’m gone, they can sweep it under the rug and settle the case.”

The city now plans to demolish the Orange Bowl in February. Assistant City Attorney Olga Ramirez-Seijas, who handled Hammes’ contract, received a $9,000 “outstanding performance lump sum” in addition to her $164,640 a year salary in June 2007.

Then, in July 2007, a court ruled that the city of Miami would have to start from scratch in its bid to sell public land to Crosswinds, a Michigan-based company that planned to build a mixed-use condominium project in Overtown. The reason: Spence-Jones did not disclose during the public hearing that she had visited Crosswinds’ projects in Detroit, which would have allowed the project’s opponents to rebut her claim that the buildings were “the best thing since sliced bread.”

Many City Hall insiders, including Commissioner Sarnoff, said Fernandez should have told Spence-Jones to disclose her trip during the hearing. Sarnoff opined at an Upper Eastside forum that the city attorney “left her out to dry.”

“The issue has been addressed and is correct,” Fernandez said. Although the commission has since reapproved the Crosswinds project, the city is now in litigation with the county, which wants to take back ownership of the land.

Some of Fernandez’s critics said his office’s ability to defend Miami is being hampered by frequent hours-long meetings to discuss administrative matters or plan parties — parties that are often planned by the Sunshine Committee, which all office employees are required to contribute to financially. According to one internal memo, employees are allowed to wear jeans on “casual Fridays” only if they donate $5 each week to the Sunshine Committee.

Miami attorneys must also document every activity they do for the city — even if it is not legal work — in a Pro-Law computer program.

“The practice of law is a business,” Fernandez said. “We conduct ourselves in a businesslike fashion.” He said “billing” the city informs commissioners how much time is being devoted to legal work.

But sources inside the City Attorney’s Office complain that it takes too much time to log their hours — time that could be spent researching or reading pending contracts. They also claim that because the city can be “billed” only for tasks of 15 minutes or more, they are forced to record two-minute tasks as 15-minute tasks. As such, attorneys have recorded spending 34 hours on legal work in a single 24-hour day.

These problems, and the ongoing criminal investigation, have led to low morale in City Hall.

“The people aboard the Titanic had more optimism,” one city employee said.

Still, Fernandez maintains that he hasn’t done anything improper.

“It should be about the city’s business, not about impertinent interests or playing politics,” he said. “When you call about this bullshit … a man of my age, in my business just doesn’t have time.”

Comments? E-mail erik@miamisunpost.com

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