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MIAMI MIRROR TRUE REFLECTIONS

Jose Smith

THE CITY ATTORNEYS DENIAL


Example of the vulgar art of retaliation in the City of Miami Beach
March 7, 2013 City of Miami Beach fire inspector David Weston, who was fired in 2008 on the pretext of violating a county ethics ordinance prohibiting outside employment even though his so-called outside employment was merely an investment and the Miami Dade Ethics Commission and Public Trust had clearly cleared him of impropriety in that regard, claimed that the City Attorney Offices office was involved in his dismissal. I, like Mr. Smith, had a financial real estate interest on the beach, he said in response to our inquiry.My interest was with some boat docks and therefore not under any aspect of my regulatory duties. I was terminated from the city because it was claimed that this ownership was a conflict of interest. The Ethics Commission disagreed and ruled in my favor. Salient are the facts that my ownership and outside employment was previously, fully, and annually disclosed, yet, according to what I was told, Mr. Smith approved my dismissal. As a professional employee of the city I suffered absolutely no financial harm as I was fully vested with my benefits. Personally I had a replacement job two days after leaving Miami Beach. I believe that Mr. Smith wanted me removed from the city because I would not remain silent about the millions of dollars of missing monies, stated Weston.I know that the city attorney participated in my termination as I was warned several days in advance of my termination by an attorney in his office that leaked this decision to a mutual friend Consequently, I believe that Smith was well aware of the financial irregularities in the fire, building, and code departments, which in my opinion, are and
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were racketeer influenced corrupt organizations. Salient to this opinion are the conclusions from my own experiences as well as reading the indictments of building employees Ratner, Partovi, Johnson and Villarreal. Freelance journalist David Arthur Walters asked Smith to comment on Westons statement as to his offices role in the dismissal. Walters had supposed that a city attorney would normally review potentially problematic personnel terminations, but he was not sure of that since on previous occasions Smith had said that his office only advised city officials in response to their specific requests. Mr. Weston, Walters explained, has expressed his belief (attached) that you knew of the irregularities in the allegedly corrupt city organizations and that you wanted him fired and participated in the termination process because he would not remain silent about missing monies. He claims that the pretext for his termination was an alleged conflict of interest over outside employment that did not actually exist as such, and was in reality simply an investment relationship similar to that which you yourself had. Now most people do not know much if anything at all about the citys personnel rules, nor are they aware of the proper role of a city attorney in regards to this sort of personnel situation even though they have a pretty good idea from news accounts and movies what a house attorney for a mob does. Hopefully you provide some clarification of your own role in this case, other than that you followed the law as usual. I do not know David Weston and I have never spoken with him, Smith responded in a public record email.Nor was I aware of his allegations reported in the Miami New Times. Had those allegations been brought to my attention, I would have referred them to the appropriate law enforcement authorities as I routinely do. I do not know the circumstances about Mr. Westons termination and no one in my office had ANYTHING to do with it. Indeed, in a letter dated October 8, 2008, Ramiro Inguanzo, former Human Resources Director, informed Mr. Weston that my Special Ethics Counsel Jean Olin, an attorney in Mr. Smiths office, had NO KNOWLEDGE of [his employment] with the City and DID NOT take part in the decision to terminate [his employment]. Mr. Westons Personnel file reflects that he was terminated by Fire Chief Eric Yuhr for violating both City and County Ethics Codes, after an extensive investigation by Sonia Machen, the citys Fire Marshal. Mr. Westons belief (5 years after his termination) that I was somehow aware of financial irregularities or that I had a role in his termination is patently false and offensive. His belief is contradicted by his Personnel File (and his own words and actions). I caution you that as a journalist, your malicious dissemination of these clearly defamatory statements (as well as your reference to the mob), knowing them to be utterly false, for the sole purpose of creating scandal and controversy will expose you to personal legal liability and punitive damages. Your continuous efforts to tarnish my reputation for political or personal agendas will not be tolerated. I suggest you consult will your legal counsel if you think Im playing games. Please govern yourself accordingly. (sic) The opinions and beliefs of Weston if disseminated would clearly not be libelous according to Florida common law, but unethical attorneys may nevertheless slap people with costly suits simply to silence them and extort settlements. In any case, if Smith were not aware of the Weston affair, he certainly should have been, especially since his assistant was involved in it. In

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fact, the public record on the matter, within easy reach of Smith, contradicted his disavowal of his offices involvement in the matter. Weston, after reviewing Smiths statement, said that Mr. Smith is right in being concerned about tarnishing his reputation. I felt the same way. Weston noted that Assistant City Attorney Olin was specifically mentioned in Fire Marshal Machens report as consulted in respect to the Weston termination, that Olin was directly copied on Ethics Commission Opinion 8-36, and that there were other errors that could be pointed out, but he wondered what the point would be of pursuing the issue with Smith, whatever the objectives might be. Machens March 5, 2008, report objects to Westons alleged business relationship with Permit Doctor because it might give that company an unfair advantage over other expeditors. She did not mention that an inspector might be inclined to speed up the approval process if he also worked for or had an interest in the expediting company involved in the process. On February 26, 2008, she stated, I consulted with Ms. Jean Olin, Assistant City Attorney, assigned to ethical issues. Ms. Olin reviewed the documents of the complaint and indicated that in her opinion, there is clearly a conflict of interest. Weston disagreed and personally brought the matter to the Ethics Commission after he was finally able to obtain a copy of Machens report some months after his dismissal. He asked if an investment in a company constituted employment with that company subject to disclosure, and received the September 2008 opinion numbered RQO 08-36 with a copy given to Olin. It specifically addressed the outside investment issue; the Commission ruled there was no ethical conflict. The investment discussed was in a boat-slip renovation marina business, and not in Permit Doctor. The employment issue was not discussed in the report. Weston stated that he was not employed by Permit Doctor at the time of his dismissal. Walters responded to Smiths email, stating that he expected to see his denial, and had even suggested it when he remarked on the presumed difference in roles between a house lawyer for the mob and an attorney for a city. I certainly did not intend to imply or suggest that you are a Bruce Cutler, he told Smith. He reminded Smith reminding him that he, Jose Smith, a former commissioner and now a city attorney, was a public official, and averred that no competent lawyer would see defamation in anything he had ever said about Smith or in Westons current statements of belief and opinion. I do not pretend to advise you how to behave, but I have a perfect right to give an adverse opinion on your behavior by way of comparison with what I believe would be appropriate if I were in your shoes, Walters continued, stating that he would hold Smith, his attorneys, and the city liable for malicious prosecution if suit were brought against him. Walters was surprised that Ethics Commission staff had not pursued a conflict-of-interest case against the city officials who had apparently exploited their high offices to exempt themselves or others from blame by retaliating against people coming forward with claims of misconduct.

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I am surprised, he remarked in his email to Smith, that given the public scandal, the perception or misperception of widespread corruption in the city, that the Miami Dade County Commission on Ethics and Public Trust has not sent someone over by now to look over the records and interview everyone involved. As it is, it seems its director may have been sleeping on the job, or has been too busy drafting ethics lessons, to come over here and see if there is any merit in the negative opinions and beliefs of Mr. Weston and other former and current city employees. After all, Public Trust is at its lowest mark in the city at this time. Walters sent Smith a copy of a blank whistleblower complaint of one James Llewellyn against the City of Miami Beach. Mr. Smith, I came across the attached blank complaint with allegations similar to Mr. Weston's. I have not looked into it, don't know if it was filed and if so what came of it. Llewellyn, a decorated firefighter and fire inspector with the city since 1984, alleged in the complaint that he had been punitively transferred because he had vigilantly enforced the fire code, and had detected and reported malfeasance and misfeasance to his superiors including Fire Marshal Machen. Numerous violations were cited. Both the New Times and the SunPost had published reports about similar problems, some of which were allegedly admitted by the city manager and the fire chief. The complaint states that Llewellyn was warned that he had violated the chain of command procedure, providing inspection information to outside parties. He was warned again, this time for conduct unbecoming, insubordination, and poor customer response, after he documented violations at an influential business. He was transferred from fire inspection to fire suppression, at substantial loss of pay and rights, and his motions to have his grievances and appeals heard were allegedly denied. Smith responded to Walters, sending a copy of his public record email to the editor of the SunPost. Walters had not solicited nor submitted an article to the SunPost on the subject, and had told Smith in no uncertain terms on previous occasions that he was not employed by the SunPost, that he was a freelance journalist who submitted articles to various publications. Please see attached. The complaint was dismissed by Judge Wilson as frivolous. The 3rd District Court of Appeal affirmed the dismissal (P.C.A. without opinion).The grievance was also denied. It was all BS. Weston never even bothered to file a grievance or a lawsuit. Have you confirmed if any of it is true? Keep digging. Keep trying. Youre developing quite a reputation in town. Maybe the National Enquirer will print our emails! Have you no shame? Jose Apparently Smith did not read the attachment he sent to Walters, which was a memo from his office to the city commission stating that the suit was dismissed on two technicalities: the statute of limitations had expired, and the underlying grievance process had exhausted the complainants remedies. We have not yet corroborated Smiths allegations to the commission. If his memo is correct, the judgment was not on the merits of Llewellyns allegations of misconduct.

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Llewellyn has said that he has proof and is willing to come forth with it. When provided with a copy of Smiths statement to Walters, he addressed Smith in a public record email dated Feb. 18, with a copy to Interim City Manager Kathie Brooks, as follows: Dear Mr. Smith: After I read your recent comments regarding my old whistle blower law suit, I must respond to set the record straight. You wrote that my suit was BS. No sir, failures and corruption regarding public safety matters are dangerous and a disgrace. As an attorney, you know very well that court decisions are not always indicative of what the truth represents, especially when it involves whistle blower suits which are notoriously difficult to advance. Furthermore, as you know, statutes of limitation issues were involved in the courts ruling against me. While my suit may not have been successful in recouping unjustly lost compensation, the details spelled out in it are backed by proof, especially dealing with the citys failures to ensure honest and effective government in the realm of life safety. You simply deny these facts and other truths of the matter. You actually seemed more interested in insulting and denigrating the person doing the inquiry which prompted your comments regarding my suit than you do in acknowledging the truth. Citizen activists usually operate using their own time and resources. While some in government may be irritated by their efforts the truth is they play a critical role in keeping government honest which has obviously been a problem in Miami Beach for many years. Their role is especially vital when government managers seem more interested in self preservation and political considerations than positive reform, all the while being paid handsomely by the very same taxpayers they have betrayed. Lastly, you seemingly fail to recognize the irony of your pathetic denial. Consider that at least as far back as my efforts to fight corruption almost 10 years ago, (see Up in Flames link below) Miami Beach government managers have presided over continuing gross failures of public trust including critical issues of public safety and well being. One would have to be dishonest or simply out of touch with reality to deny otherwise after so many years of arrests, investigations, critical audit findings etc. And that strikes at the heart of the problem of what some people, including myself have been saying for so long. Miami Beach management has enabled corruption by circling the wagons and punishing those willing to speak out instead of acknowledging the truth, just as you are doing with the comments regarding my suit. How do you and other so called leaders sleep at night? Do you ever have trouble looking in the mirror? How do you rationalize away the fact that Miami Beach management, of which you are a part, has repulsively failed to provide honest government for many years, resulting in unnecessary endangerment and losses to Miami Beach residents and visitors. You asked the person making the inquiries about my suit if he had no shame. Given the indisputable evidence of extensive corruption that has occurred under your and the rest of Miami Beach government managements watch, along with the continuing resistance to acknowledging the truth for the sake of positive reform, I must ask. Have you no shame? Sincerely, Jim Llewellyn Miami Beach Firefighter/Inspector Retired. Smith sent yet another email to Walters, taking care to copy the editor of the SunPost even though Walters once again had informed him he was an independent freelance journalist, and was giving first dibs to national media on the final series of articles he would write on the particular subject. Mr. Walters. Why are you then peddling your junk to City Debate? J.P. Morgan does not play your game. Neither does the SunPost. Or anyone elses. If you have evidence that contradicts
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my statements, a REAL journalist, without an agenda would allow a response. Obviously there is none. Otherwise, I would have seen it by now. No, Mr. Walters, I am not afraid of you or your ilk. Never will be. You see, I have lived in this community for 52 years and I'll remain here long after you go stink up other pastures. (sic) Walters had put out feelers to various publishers but he had submitted nothing to City Debate editor J.P. Morgan, illustrious publisher of the widely acclaimed book about Miami Beach corruption, Sins of South Beach. When contacted at home, Morgan said that he had not been in touch with Smith for months. Walters advised Smith, that if he wanted to see the evidence, he should put three guys with shovels on the subject matter, keeping in mind that a single aardvark can dig just as fast. Again, as a matter of fact, the involvement of the City Attorney office is well documented on the public record, and Smith has easy, immediate access to the documents. On the other hand, Weston had extreme difficulty getting documents which had apparently been cleaned from his personnel file or put into another file, much to the consternation of former City Clerk Robert Parcher. We have in our possession a copy of a letter dated Oct. 12, 2008, from Weston to Human Resources Director Ramiro Inguanzo, thanking him for replying to his Oct. 2 letter to Olin. Ms. Olin provided direct counsel on my matter to the Fire Marshal (see attached memo of 3.5.2008) and Ms. Olin also attended my hearing before the Miami Dade Ethics Commission (see opinion RQO-08-36). Some comments were directed to her during that meeting. The Commissions opinion clearly and specifically stated that my equity ownership was not considered employment. I also intended to advise Ms. Olin that even if I had been an employee; that I had a written extension authorization issued to me by the Miami Beach Fire Chief. That authorization stated that certain employment matters were to be submitted to your office for a resolution and that I would be subsequently advised. In our meeting of June 2, 2008 you indicated that you were unaware of this memo from the Fire Chief and that Mrs. Machen had not informed you of this memo. I also intended to show Ms. Olin another memorandum indicating that no other person in Fire Prevention division had filed any documentation declaring outside employment. Apparently I was not alone with this understanding. During our meeting in June I advised you that I intended to take this matter to the Miami Dade Ethics Commission and now based upon their rulings I would like to request that you reconsider your prior recommendations. Consequently, I would like to request that you re-review this matter and your position. (Paragraph breaks omitted) The Oct. 2, 2008 letter from Weston to Olin had the following content: I would like request a meeting with you regarding my termination from the city. I apologize for the delay with this request but I have been awaiting a copy of the Fire Marshals investigative report of March 5, 2008. After several written and verbal requests I received that information for the first time on Monday, September 29, 2008. I find that this report contains some misrepresentations as well as omissions of material facts. As you may know I met with Mr.
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Ramiro Inguanzo on Monday June 2, 2008. He also confirmed at that time, a lack of knowledge of additional information that had not been presented to him by the Fire Department. I continue to believe that it would serve the city and my interests well if you had the opportunity to hear my position personally. Thank you in advance for your time and attention to this matter. (Paragraph breaks omitted) That information gibed with a narrative of events that Weston emailed to Walters and the SunPost editor after he was given a copy of Smiths vituperations: An anonymous letter of complaint arrived at the fire department, and I was called into the office with Fire Chief Ed Del Favero and Marshal Sonia Machen. I was asked if I was a shareholder in 5255 Marina LLC, and I explained I that was, which was no secret to Del Favero. Machen sent me a memo informing me that I was under investigation. She asked me for an explanation and ordered me to refrain from any inspections involving Gallo (a principal in Permit Doctor). I submitted an explanation that I had contacted the Ethics Commission, and I had also been granted a waiver from the former fire chief, Floyd Jordan. On March 21, 2008, two days after the arrest of Mohammad Partovi, Henry Johnson and Andres Villarreal, I was called into acting Fire Chief Eric Yuhr's office and handed a termination memo. Two sentences, if I recall correctly. No reason was stated. I had offered to resign, but Chief Yuhr declined. I was asked to pack up my stuff immediately and leave, which I did. I immediately asked for a copy of the Machen investigation as I was entitled to one according to the Fire Department policy. I was told no, and was directed to contact HR for itthat would take months of requests, which were ignored by HR, until it was finally produced by City Clerk Robert Parcher, my hero. I was not interested in pursuing a complaint against the city. I was not disgruntled, only concerned that something very wrong that clearly was going on. Machens investigative report contained factual errors that I thought worthy of reporting to Assistant City Attorney Jean Olin I wanted to tell the city attorney's office directly about it. I was rebuffed by HR Director Ramiro Inguanzo. I had done everything possible to alert the city of unusual transactions and also alert the city of the circumstances of my dismissal, but there was no getting past HR. In conclusion, wrote Weston, I did not know the specific charges, I was unable to confront any witnesses, I was not fairly heard and I was denied the ability to appeal. All of this was allowed under the agreement that I was required to sign as a condition of employment. All unclassified employees have no grievance procedure. The employee HR board will only hear classified cases, and Inguanzo was the chair of the board. This entire matter was never about me. It was about the citizens money, and retaliation against loyal but fearful employees. ##

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