IN THIS CORNER ….
Dear Readers ….Tomorrow at 9 am the Town Commission (sans Clottey by phone?-prev. post) will convene in Jarvis Hall at 9 am to have their first “Shade Session” to forge ahead with litigation in the Town of Lauderdale-By-The-Sea v. Esther Colon … Anything discussed in that room and going forth is no longer public record and the Commissioners are required to comply until the litigation is over…then everything including the minutes from those “Shade Sessions” are open for public records requests…
The exchanges between the Town and the former Town Manager and her Attorney leading up to this meeting are public record ….and show two very different sides with two very different styles of representation in whether or not Esther Colon was overpaid with the “public monies” to the tune of $69, 308.61 …
For those of you not up to date …a quick re-cap (prev. posts)…former Town Manager Esther Colon was unilaterally terminated on April 20, 2010 at a Special Meeting called after a Roundtable discussion on April 16, 2010 per an item put on by Vice Mayor Dodd concerning both hiring a Town Manager and either negotiating with or replacing Ms. Colon..as is allowed per her 2007 contract stating she “serves at the pleasure of the Commission” and can be terminated when she no longer does… The meeting was quick due to the majority realizing from the Roundtable discussion and Ms. Colon’s surprise appearance (she had previously stated she had a doctors appointment that could not be rescheduled) and brief commentary of having no comment until the April 20th meeting where she would bring counsel…there was no negotiation that would rectify her ongoing statements of the prior two years that she was not going to change her style…
What happened at that meeting was the precursor for the litigation going forth…The contract, poorly written in this writer’s opinion is full of contradictions depending on who is interpreting it…Sec. 5.0 v. Sec. 10.0 and whether one usurps the other…Also, of course was the payout calculations that followed the commission vote made by Colon’s trusty sidekick and newly appointed temporary Interim Town Manager in Town Hall after business hours with Human Resources/Risk Manager and “Gal pal” Kathy O’Brien …and the ongoing actions by Olinzock to thwart any oversight or involvement from the Town Attorneys as directed by the Commission… The Town Attorneys were put in the awkward and unusual position of needing to make a Public Records Request at the 11th hour to get the information…after John Olinzock made statements of not complying unless he was being charged criminally… The Mayor proceeded to lock down the Town Hall which was scheduled to have an overhaul by the I.T. company over the following weekend and she called for another Special Meeting on the morning of April 26, 2010 at 9am to deal with the payout which despite all efforts by the Town Attorneys and Commission went out to Ms. Colon in direct deposits at the close of the that pay period…and to also move forth in hiring an Interim Town Manager to replace John Olinzock due to his actions since being appointed the week prior…At that meeting Int. Town Manager was combative concerning his actions as was the Town Attorneys and the Commission …In the end the whole Commission unilaterally terminated the Int. Town Manager for no longer serving at the pleasure of the Commission with no cause required…as well as putting a hold on his severance and benefits until an inquiry into the payout produced whether it had been the correct amount or not… After ward he was escorted out of the hall as Town Hall remained locked down…The Commission then heard from the candidates for the position of Int. Town Manager and chose Constance Hoffmann the former City Manager of Fort Laudedale to take the position in a 5-0 vote… Ms. Hoffmann was escorted into the Town Hall and began the inquiry with the aid of staff, newly hired Int. Asst. TM Bud Bentley (also a previous Asst. TM in Fort Lauderdale and a candidate for Int. TM) a consultant and the Town Attorneys… The inquiry took a month..the HR/Risk Manager Kathy O’Brien was put on paid suspension but was interviewed as were others such as the Finance Director Kaola King, former Town Manager Bob Baldwin and former Town Attorney Jim Cherof.. There was much research needed to decipher outdated manuals used by both Baldwin and Colon and the same employment agreements the two used as well which were at odds depending on the employee working under either Manager…Also as previously and extensively posted Ms. Colon had a very different contract than her predecessor Baldwin despite years of claiming otherwise…In the end at the May 25, 2010 Commission Meeting under the Town Manager’s Report, Ms. Hoffmann gave her report and stated with the concurrence of the Town Attorneys, Ms. Colon had been overpaid with public monies in the amount of $69, 308.62 …She went through each overpayment and how it was calculated along with the former Town Manager’s contract and what was allowed to her predecessor per a past Commission …..The full Commission voted to direct Ms. Hoffman to send a letter after hearing that it was her and The Town Attorney’s recommendation to seek reimbursement…
NO GLOVES IN SIGHT ….. YET!…..
A letter was sent to Ms. Colon from the Int. Town Manager on May 28, 2010 spelling out where the Town stood on the overpayment of public monies and that the Town was seeking reimbursement to rectify the situation …The tone was by no means accusatory as it was stated at the end “As a former Finance Director, I know you understand the necessity that the Town be reimbursed these funds paid in error and ask that you remit the $69,308.62 to the Town by 5 pm on Monday, June 7, 2010.Please consider this a formal demand for payment” …
FEELING THE NEED FOR SOME PADDED LEATHER?….
The Commission was informed on June 8, 2010 that a response had arrived … At the meeting the Commission after asking some questions of the Town Attorney and hearing of the back and forth that had gone on between Ms. Colon’s Attorney and ours along with public record requests made the decision 5-0 to go forth with any and all means to retrieve the “public monies” our counsel thought were made to Ms. Colon in error…(Again, for a look at those exchanges in excerpts and full text up to this point scroll down or look under the scoops category)… The Commission also chose to change the termination of Int. TM John to be with cause …it is said it will now go to the State Atty. to see if the actions take were indeed criminal …Below is what followed the June 8, 2010 response from “Mrs.” Colon’s attorney…….
EXCERPTS….. OVERVIEW…..VERBATIM ….
TIME TO BOOK THE APPROPRIATE VENUE?….
June 15, 2010
From Weiss, Serota (Town Attys.) Brett Schneider To Kenneth Joyce (Colon Atty.) Brinkley, Morgan Fort Lauderdale, Fl…. e-mail
Atty Schneider sent a response e-mail to the June 8th letter from Atty. Joyce informing him that the May 28, 2010 letter for repayment of the “public funds” from “Ms.” Colon included “a very detailed report summarizing the Town’s findings”…”after an extensive investigation”…and that the repayment from Colon was due at the close of business on June 7th… Atty. Schneider recounted that Atty. Joyce had “initially” contacted Weiss, Serota to “advise” they needed more time to complete their “review” on “Ms. Colon’s behalf”… and they had also sent a letter to “request public records related to Ms. colon’s termination and search for her replacement”.. Schneider stated Joyce “asserted these public records are necessary to complete your review of this matter for Ms. Colon.”… Schneider countered that in our (Town’s) “opinion ” the public records request “is a misguided attempt by Ms. Colon to stall the process of reimbursing the Town. The records sought in your letter have no legal relevance to the issue of overpayment.”..Schneider went on to explain they have “no bearing on how the leave payments were calculated or on the entitlement to various aspects of the payment.”…He added the public records requests would be responded to in a timely manner “although we do not believe that the records request is a legitimate basis for withholding the immediate repayment of these public funds.”….Schneider continued on with explaining on the morning of June 8, 2010 after the June 7, 2010 deadline for reimbursement and the day of the scheduled Reg. Commission meeting that Weiss, Serota advised Colon’s Atty. of Ms. Hoffmann received another letter from Joyce…Schneider recounted some of the rhetoric in that June 8th letter concerning Colon…that her termination was “retaliatory”, the Town “painted” Colon as a “nefarious actor” and “has engaged in an intentional and reckless campaign to harm Ms. colon and her career.”…Schneider added that Joyce wanted to be advised when he could “conduct interviews of the relevant personnel and Commissioners.”… Schneider countered with the following “Despite Ms. Colon’s allegations, the Town and its representatives have exercised incredible restraint since Ms. colon’s termination and throughout the Town’s investigation of this matter, particularly given the significant amount of public funds at issue. Additionally, based on the information available, we are doubtful that you or Ms. Colon truly believe that the arguments supporting her claim of entitlement to the monies at issue have any legal merit…. He went on to counter a claim made in the June 8th letter about the provision in Colon’s agreement Sec. 10.1 where she and her Atty. believe she is to accrue vacation leave “as granted to other non-managerial non-union employees of the Town somehow means that she should accrue vacation in the same manner as only one former Town Employee- former Town Manager Robert Baldwin. That assertion completely ignores the fact that Ms. Colon had a written contract addressing vacation leave unlike Me. Baldwin.”….Schneider also countered Joyce on the Town’s Personnel Policy Manual distinguishing between managerial and non- managerial positions stating there is none… “The fact that a prior Town Commission may have allowed a prior Town Manager to accrue vacation leave at a different rate than set forth in the Manual does not, as a matter of law, create new policy for vacation accrual applicable to all managerial employees- especially if the employees have written contracts with different terms.”…
“It is now abundantly clear that, rather than reimburse the Town the public monies that she was erroneously overpaid, Ms. Colon would prefer to attempt to intimidate the Town into forgoing its pursuit of such funds by making misguided and unsupported threats of potential litigation, and by relying on incredibly flimsy arguments regarding the propriety of the severance and leave payments she received. As a result, the Town Commission has authorized this Firm to take any and all appropriate legal measures, including commencing litigation against Ms. Colon if necessary, to recover the public funds that are in Ms. Colon’s possession. We hereby make final formal demand for repayment of such monies. If we do not receive reimbursement from Ms. Colon of such monies by close of business on June 18, 2010, we will be left with no choice but to initiate litigation against Ms. Colon.
Please govern yourself accordingly,
Very truly yours, Brett Schneider.”
A “THRILLA FROM MANILA” P.R. MOVE?…….
June 15, 2010
From Colon Atty. Kenneth Joyce to Town Atty. Susan Trevarthen ….. e-mail
Atty. Joyce sent an e-mail as a follow up to their telephone conversation on June 8, 2010 and the clarification Trevarthen asked for concerning Colon’s June 4, 2010 public records request….The Town advised Joyce the request “encompassed potentially many documents”…Trevarthen, Joyce asserted also stated “there may be a substantial service charge incurred for use of staff or IT personnel”…Joyce stated that given he “specific nature” of those requests he could not see how they would require “a great amount of technology to respond.”.. He broke down the requests including the “120 window” which was the request for any e-mails, texts, phone records with the words “Manager”…”Colon”… “Esther” …He went on to ask for a “reasonable range” of what the Town thinks it would incur to respond to the remaining request …”If you could give me an idea why the request is problematic from a search or breadth standpoint, perhaps I can help by narrowing down the request. I would ask that you please provide this information as soon as possible. This has already take a significant amount of time for records that should be reasonably available.”…He added that per their conversation on June 4th he wanted to review the back-up documentation used for the may 20, 2010 Report…wanting the exact information Hoffmann had to inspect and it should be readily available….
“If the Town legitimately wanted Mrs. Colon to consider its position, we would expect the Town would make this information available to us before making rash decisions. It is curious that the Town Commission has given you direction to proceed to collect these funds from Mrs. Colon when it is obvious from the June 8, 2010 meeting the Commission did not have benefit of our letter setting forth why the Town has such an unsustainable position. Mrs. Colon has presented pertinent information the Commission should consider before blindly proceeding to incur significant costs and attorney’s fees in a tight budgetary environment. We hope for the sake of Lauderdale-By-The Sea taxpayers that reasonable and informed action will prevail. If you wish to discuss any of the matters herein, please do not hesitate to contact me at any time.
Very truly yours, Kenneth J. Joyce”
HE’S PUTTING THE “GLOVES” ON ….. AND GETTING “PERSONAL” WITH OPPOSING COUNSEL!…..
June 18, 2010
From Colon Atty. Kenneth J. Joyce to Atty. to Town Atty. Brett Schneider…. e-mail
I acknowledge receipt of your June 15, 2010 correspondence, which we return–rejected out of hand. Quite frankly, we are unimpressed with your positional statements not grounded in any law or fact. It is unclear why you bothered to write. Your letter does not provided any new information relative to the Town’s prior position, renews unsupported demands and avoids any sincere attempt to reach a resolution. Your threats are meaningless in light of the facts and your attempts to insult will not sway us. When this matter is litigated, which the Town seems intent on pursuing, we will depose each of the Town’s elected officials and ask them if they understand the groundless positions taken and whether they were shown our earlier correspondence prior to authorizing suit.
The Town is making a mistake; however, it clearly cannot be our role to attempt to prevent this any more than we have. If you cannot offer anything more productive we are finished talking to you.”
Atty. Joyce went on to discuss that he still had not been “afforded the opportunity to inspect Public Records in connection with this matter.”… He added that while the Town was “accusing” them of stalling the repayment they asked both orally and in writing and they do not understand why some items were not available “immediately”…. citing the Town’s “unilateral time deadlines”..”We can only assume the Town’s willful non-compliance with the Public Records Act is indicative of its weak position.”…
“It should be evident from our letter of June 8th that we do not believe Mrs. Colon owes the Town any funds at this stage..The records that were referenced in Ms. Hoffman’s letter of May 28th support, exactly , the amounts paid to Mrs. Colon. The only basis for the Town to claim a refund is a non-applicable policy manual that is contradicted by the Town’s own records and its own course of dealing. Your June 15th correspondence contains no substantive response to the information I provided you in my June 8, 2010 letter. We specifically provided material information that was absent or ignored in the May 20th Report. Rather than address it, you have again chosen to ignore it.
It appears that the Town Commission has been led to believe that public funds have been paid to Mrs. Colon incorrectly, when that is simply not the case based on the records at our disposal. Unless you have some additional information that I am not aware of, there is no basis in fact or law for the claimed reimbursement. As an act of good faith, we provided you a specific response based on what we had. You have not responded in kind. Your June 15, 2010 letter merely parrots the same position with nothing new added to the unsupported conclusions contained therein.
Our prior correspondence is sufficient, in our considered view, to warrant a re-evaluation of the Town’s position; however, it now appears that the Town wants to proceed with litigation and your firm, regrettably, is willing to serve as the Town’s instrumentally in this regard notwithstanding its prior professional relationship with our client. You may serve us with the Town’s lawsuit. Please confirm that you are willing to accept service of ours.
Very Truly yours, Kenneth J. Joyce”
WE WOULD LOVE TO BE A FLY ON THE WALL AT THE TOWN ATTORNEY’S OFFICES…. HOW MANY ROUNDS GUYS?….
June 18, 2010
From Town Atty. Susan Trevarthen to Colon Atty. Kenneth Joyce … e-mail
Town Atty. Schneider answered back to Joyce’s public records requests dated June 4th and 15th… “As you know, the Town is in receipt of numerous public record requests from your client over the past two months, as well as requests from other members of the public, and is addressing them in the order received consistent with available resources. At no time have I asked you to commit to unspecified service charges. I advised you generally of the information available at the time regarding these public records requests, as you requested in your June 4 letter, and sought clarification as to whether you wished to narrow the request.
June 4 letter
1. Minutes: One of the requested sets of meeting minutes is still being prepared. When it is complete, the set will be provided to you upon payment of the cost of the copies. As noted in our discussion and well-known to your client, many of the minutes you requested are already available to you on the Town’s website on demand, at no cost; do you still wish to pay for printed copies from the Town?
2 and 3. Record referencing the terms “Esther,” “manager” or “Colon” from February 1, 2010 to date: As we have discussed and as well known to your client as the person who was ultimately responsible for developing and maintaining the Town’s computer systems during the time frame covered by your request, this is a large class of documents that is difficult to comprehensively search using the Town’s systems. This is a small town with limited staff and technological resources, and there’s no legal requirement for them to provide state-of-the-art search capabilities for their records. The Town’s legal requirement is to provide access to or copies of these records at a reasonable time, under reasonable conditions.
Your client was the Town Manager of the Town. and as such her name or title appears on the majority of documents in possession of the Town and its officials, even if just shown as a “cc” recipient. Only the Clerk’s minutes have term searching capabilities. Only a couple of the computers at the Town even use Outlook. Emails are being retrieved for search, and staff time will be needed to complete the searches in the date ranges provided.”
Atty. Trevarthen wen onto describe the Town’s version of Word is not capable of term searching for a restricted date range …She added it would be “extremely time -consuming and burdensome and not practical …The Town’s IT consultant gave an estimate of $2500 to electronically search each server for all the responsive documents and “there are multiple servers in the Town’s system, as your client knows.”… She asked Colon’s Atty. which servers they wanted searched and will they agree to pay for this search…Trevarthen went on to describe extensive hours of labor which will bring additional charges adding staff is doing a search of a sample from which they will be able to provide an estimate of how long it will take to search all of the “potentially responsive records.. Do you wish to narrow the scope of the files to be searched to a particular department or office?”.. Trevarthen stated the Int. Town Manager is working with her staff to prepare responses to the requests electronic and paper and more specific costs to produce for Colon’s Attys. to decide to proceed or narrow the scope….
“4. Records regarding contacts between Commissioners and anyone offering to assist with an Interim Town Manager search: The Town is attending to this request also. As you know the Town is in receipt of numerous public records requests from your client as well as other members of the public, and is addressing them in the order received consistent with available resources.
June 15 letter
1. Request for documentation supporting Ms. Hoffmann’s report on the payout: This documentation is available, and can be provided upon payment of the cost for the copies.
Please do not hesitate to contact me should you have any questions or wish to discuss these matter.
Very truly yours, Susan L. Trevarthen”
PAST RECOMMENDATIONS ….
BC- Purely the opinion of this writer…but did former Town Manager Colon find an attorney that provides her a lethal combination of TNT?… WOW!…The June 15, 2010 response letter to Brett Schneider and the Town’s firm (the very firm that the former Town Manager herself championed and dug her heels in order to have represent the town…including a last minute disclosure of prior history with Weiss at the March 31,2008 Special Meeting) all but called them inept in representing the Town in this matter… Of course, later in the same letter, Colon’s Atty. (again in my opinion) did a sudden about face by asserting the Commission is putting the firm in an untenable position by going forth with litigation…Hmmmm… A look at that March 31, 2010 meeting and the exchange between Atty. Richard Weiss and former VM McIntee produced one exchange that was very telling for what must be going on behind the scenes in his firm over this whole Colon ordeal… At that time McIntee stated he had checked out the law firm and gave the percentages of 60-40 stating that was “pretty good”…Weiss was visibly taken aback and responded “I’m upset about that” and further stated “if any managers or elected officials are not happy with our work I’d like to know.” McIntee responded “I could never tell you that. They’d never talk to me again and visa versa, that’s privileged communication”…(yeah, right!)..Atty. Weiss came right back and stated “If it’s 60-40 I should get out of this business.”… Earlier with the lack of response for the position being addressed Weiss spoke about the small number of firms that are primarily municipal firms such as his as a reason for it…
Two more interesting comments from that meeting …especially in light of the above exchanges by the attorneys were these…
Atty. Weiss dealing with a day to day vs a retainer issue due to some concerns from the Commission stated “I never understood why a city manager or a city attorney had to be fired. Quite honestly I never did. I’ve always taken the position, I don’t need to publicly stand up here and you tell me what a bad job I did. When the votes are not there to keep me, I’ll just, all I ask in return is that you treat us with respect and treat us decently.” He stated he “didn’t want his kids to be embarrassed.”
Former Town Manager Colon at the end of the meeting when asked about going out for another RFP due to the lack of responses stated the following “Let me give you my opinion that any true professional with integrity that has the years of experience the he (Weiss) has, that I have I have, if the Town Commission doesn’t want the firm, Weiss, Serota and whoever isn’t gonna want to be here. I mean that’s just the way we are.”…
In this writer’s opinion that “integrity” flew out the window for the former Town Manager with the 65% landslide election that told her that loud and clear…your services are not wanted in Lauderdale-By-The-Sea anymore…
While the “Shade Sessions” will remain out of the sunshine…if there are any court proceedings they are public record and will be posted …
more to come…