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06-24-77SpMtg JUNE 24~ 1977 A Special Meeting of the City Council of the City of Delray Beach, Florida, was held in the Council Chambers at 11:55 A. M., Friday, June 24, 1977, with Mayor James H. Scheifley presiding, and City Manager J. Eldon Mariott, City Attorney Roger Saberson, and Council members Robert D. Chapin, David E. Randolph, Aaron I. Sanson, IV., and Leon M. Weekes, present. Mayor Scheifley stated the Special Meeting was called for the purpose of considering the George Clemens case. The City Attorney stated the monetary amount of the settlement is $27,500; there will be a release executed by George Clemens on the terms and conditions as outlined by the City Attorney; there is a release that has been executed by the individual defendants and by the City which releases Mr. Clemens and is signed by the City and all defendants in the Clemens case; there is a letter of reinstatement signed by the City Manager reinstating George Clemens as of June 24, 1977; there is a letter to be signed by Mr. Clemens resigning as of June 24, 1977; there is a "To Whom It May Concern" letter to be signed by the City Manager which will be referred to in all future employment inquiries; there is a letter to the Police Standards Board signed by the City Attorney (Mr. Oxner has a copy) transmitting a form that is used by the Police Standards Board indicating that the termination of George Clemens was not under prejudicial circumstances and requesting the Police Standards Board to remove any derogatory material from their file to implement the request; a dismissal with prejudice of the motion and supplemental complaint filed in the Federal Court action and a dismissal without prejudice of the Public Records Case in Circuit Court. Mr. Oxner stated the only thing that the City Attorney did not mention was the request for information coming in from prospective employers will be referred to the City Manager. The City Attorney stated what is needed at this point, if it is agreeable with Council members, is a nLotion approving the settlement and the terms and conditions as recited in the records. The City Manager stated he would like the minutes and records to reflect the fact that all actions taken in the past and to be taken in the future, with regard to the George Clemens matter, flow directly from the Council's sxpress~d wish in the past, that the City engage in the actions that would lead to the settlement of this case; with regard to all personnel matters and papers, documents, records,that all actions of the City Administration have been and will be predicated upon Council's decision with regard to the settle- ment of the case and nothing else. Mayor Scheifley stated it is now up to Council to take whatever action they wish. Mr. Sanson stated to Mr. Clemens that he would like to get away from all the legal mumbo jumbo and ask him "gentleman to gentleman" is it to be understood that if this settlement is agreed to today by the maj.ority of Council, that he, as a gentleman, has no -intention of filing any other legal suits relative to his tenure of employment with the City of Delray, assuming all conditions are met. Mr. Clemens stated that up to now, he has no intention and has made no plans to sue anybody else. Mr. Sanson stated to Mr. Clemens that, then as far as he is concerned, this settlement will consummate this affair and close this chapter. Mr. Clemens stated up to here it is closed. It was asked of Mr. Clemens, what about next year. He stated that if the City does not bother him, he will not bother them and that is what he has said from the-first. He stated that, up to now, everything that's happened is done. Mr. Sanson moved that the settlement terms be accepted on the basis as outlined by the City Attorney and'full execution of that settlement today in terms of the letters to be signed by City officials and Mr. Clemens in the releases, seconded by Mr. Randolph. Before roll call, the following discussion was had: Mr. Randolph stated when the City Manager spoke a few seconds ago he mentioned that any information or any request coming in to the City of Delray Beach, as pertains to possible employment of Mr. Clemens, would be answered by him based on what transpired at this meeting today; Mr. Randolph asked the City Manager if this is the correct understanding of his statement. The City Manager replied that that statement means a number of things, one of which is his instruction to the City Personnel, Police Department, Personnel Office, that would be likely to have occasion to receive inquiries from prospective employers of Mr. Clemens in the future. His instruction to those people would be that those inquirers shoSld be routed to his office and then he would make available to them, the official documents that are in the files. The Council settlement calls for the removal of certain files pertaining to Mr. Clemens, as was the case with Mr. Papy, which are no longer in the Official files. The City Manager stated he will personally go as far as he can to contribute to the settlement of this case in cooperation with what he perceives to be Council's wish. Up to the point where he will not knowihgly lie about something; he will not misrePresent something and he is not going to instruct any of his employees to lie or misrepresent something; on the other hand he does not want them to put Mr. Clemens in jeopardy, as far as prospective positions are concerned, because that is a part of the ~bndftional settlement that Council wishes. The City Manager stated one thing that is brought to mind is the matter of working out a "To Whom It May. Concern" type letter that he has signed, within the last few minutes, that under ordinary circumstances he would never sign; the letter read as follows: ~. PLEASE BE ADVISED THAT GEORGE H. CLEMENS SUB- MITTED A LETTER RESIGNING AS A PATROLMAN OF THE CITY OF DELRAY BEACH POLICE DEPARTMENT ON JUNE 24, 1977. HE PERFO~4ED HIS DUTIES AS A PATROLMAN IN A CA~ABLE MANNER. The City Manager stated that, factually, these two sentences are correct; therefore, he signed it but the statements can be mis- leading. He stated it is not his intention to embellish this to try to go out of his way to give them the true picture and he hgpes his employees follow suit. It could be, on occasions, inquirers would come in to certain employees, and there would be private conversations that he may not know anything about but, as far as he is concerned, he is going to do all he can to see that things are carried on in the future in the spirit in which Council wishes the settlement to be made. Mr. Randolph stated he is basically concerned that, for example, if Mr. Clemens applied for a job in Daytona Beach and the officials there sent the normal type information to the City of Delray Beach requesting background on the man, what the City of Delray might send back to the City of Daytona Beach; would it be the full transcript of what has transpired from 72 to 77; if so you might as well send the tapes. He stated he wants to be assured that he does not have to go to the City Manager - know that someone in the Police Department sent the wrong letter to Daytona Beach = to ask\him to fire'that individual. The City Manager stated to the City Attorney that it seemed to him that in one of their many discussions regarding this and similar matters in the conference room when he, another attorney, himself, and perhaps his personnel assistant were present, that certain documents were noted that should be provided prospective employers. He asked the City Attorney weren't these documents pointed out to him in the files and that they should be furnished copies of those and nothing else. - 2 - 6/24/77. The City Attorney stated "yes" there were basic documents in the Papy file that they felt could be furnished, none of which referred at all to the litigation or anything related to that or the termination. Basically, the "To Whom It May Concern" letter is to be the letter that is sent out to prospective employers when they ask for information pertaining to Mr. Clemens; there will also be request for biographical information, which Will be released, and he assumed there would be no objections to this. He stated that, specifically in the Conference, the intention was that no information would be released that referred to the termination or litigation surrounding it. The problems comes in when the employer asks for more information than.-is furnished and, at that point, there will have to be a declamation to furnish any additional material. 'Mr. Oxner asked the City Attorney what will be sent and what won't be sent because at this point he is not sure he understands. The City Attorney stated the "To Whom It May Concern Letter" is the only thing that will be sent concerning his performance as a police officer. He stated in the Papy Case the City had some performance evaluations that were good evaluations and felt that they could send those evaluations without prejudice and probably with some benefit to Mr. Papy. The City Attorney stated he has not gone through Mr. Clemens' personnel file and there may be some beneficial material in the file that can be sent out; but his intention is that no material will be sent out that is derogatory in any-manner and it will not refer to the termination, it will not refer to litigation, and if there is any derogatory material the intention is that it will not be released. The City Manager stated it is the City administration's intent to be guided by the advice of the City Attorney as to what copies of what documents and information is to be provided for'Mr. Clemens, the same as Mr. Papy. The City Attorney stated the question that is going to come up-,is the question of what additional information can you furnish; he stated that is not a question he can answer because it is not a legal question as such, except to the extent that it contravenes and furnishes derogatory information and that specifically is not the intention of settlement. Additional information could be furnished if it.were beneficial informatimn. Mr. Sanson stated he would assume that the City Manager and Chief Cochran would take every means possible to insure that none of -their over-zealous patrolmen, in the department take it upon themselves to make personal phone calls or send personal communications relative to Mr. C~emens. Mr. Oxner stated this is what he was asking for when he asked that all referrals be directed to the City Manager. The City Attorney stated that the way it was handled in the Papy Case was that there was a memorandum sent out by the City Manager to the Police Department saying that all inquiries would be sent to the Personnel Department and then there were instructions to the Personnel Department as to releasing the information. It was not that each individual request would have to be responded to individuallyl by the City Manager but that the Personnel Department would have instructions from the City Manager how to respond. Mr. Oxner asked, if some policeman, or some detective of the Chief or the City Manager is going to go ihdividually to talk with a prospective employer or is some other officer going to go and negate this. The City Attorney stated if he does, he does it on his own. In other words, it is official City policy that requests are to be sent to the personnel office. If an employee breeches that City policy, he assumes there will be consequences flowing from that breech of policy, if it is established. - 3 - 6/24/77. Mr. Chapin stated, as he understands that the thrus~ of this case, now pending in Federal Court, is on two grounds; (1) on the ground of dismissal of Mr. Clemens'employment with the City (2) on the ground of an alleged violation of a Federal Statute which prohibits interception by wire-taping means of private communications, as a result of an incident at the Del Sol Hotel on April 25, 1974. The question, as to alleged wrongful discharge from employment, was heard in full by the City Manager who upheld the recommendations of the various members of the Police Department; was appealed to the Civil Service Board, Mr. Clemens was represented at that Board by a competent counsel, the City obtained counsel and the Board itself retained Counsel and, after some three or four days of hearings, that Civil Service Board voted 4 to 1 to uphold a dismissal of Mr. Clemens by the City Manager. That decision, in turn, was appealed to the Circuit Court of Palm Beach County, the issue was presented to Judge McMillan and Judge McMillan affirmed the decision of the Delray Beach Civil Service Board..- No appeal was taken of the Circuit Court decision; however, Mr. Clemens then chose to file a second case~in Federal Court. At a pretrial of this case last fall before Honorable Judge Fulton, Judge Fulton indicated to all the lawyers present in that court room that he did not think Mr. Clemens, having litigated his case in full,the state court could come across the street and file his case in Federal court on the discharge issue and he would not look Kindly to that and it was pretty clear to all in attendance that that case would not succeed in the Federal Court. So that~left the possible question as to what responsibility,'if any, the City has in regards to the alleged violation of the Federal Statute prohibiting interception by wire-taping, etc., of private conversations. Mr. Chapin stated it is his understanding that that question revolves around the fact as to whether or not there was a private communication of the meeting at the Del Sol - it was in fact a private communication. He stated it was bis understanding that the door to the room was wi~e open, and that would lead some to believe that was a public communication as opposed to a private communication. He stated it is his further understanding of the law that if there is indeed a violation of the Federal Statute', the statute provides for minimum compensatory damages ¢~£ $1,000 plus attorneys fee, plus possible punitive damages. To settle this case for $27,500, unfortunately, does not bring an end to the City's litigation arising out of the incident that occurred on April 25, 1974. The City has been sued by the PBA in a case for $3.5 million as a result of that incident on April 25, 1974 at Del Sol and it has been the understanding of Mr. Chapin on the advice of the City Attorney that the complaint in that case is being amended to provide for a class action for all those who were in attendance of that meeting. He stated those in attendance at that meeting were presumably eight (Mr. Clemens, Mr. Rapy, five other unknown officers, plus another unknown officer). Mr. Chapin stated if Council settles this case for this sum of money, they are setting a precedent for those five other individuals coining in and asking for the same identical treatment; he thinks that the value of those cases at one point, total, settled less that $1,000 and it was well known that those were known in the legal profession as nuisance cases. He stated he wanted Council to be aware that they are setting a precedence that is · beyond Mr. Clemens control and perhaps beyond the control of Council. His personal opinion is that the proper place for justice to be done ~ is in the courts where proper evidence can be presented under oath so that, if the City was wrong, Mr. Clemens can be v~ndicated in court; if the City was right, the City's position should be vigorously defended. The public has a right to know whether the City was correct or incorrect; the City has expended substantial funds to date in defending these cases; now all those funds will go down the drain. The funds to continue these cases will be relatively minimal in light of the seriousness of the controversy. Mr. Chapin stated he does not think Council should overrule the ad~ice of the three attorneys who are involved, Mr. Blue, Mr. Saberson, Mr. Becker, all whom unanimously recommend that this Council not settle this case and he will follow this ad~ice.. Mr. Chapin stated that it is his understanding that PBA has funded the prosecution of this case and presumably_ to settle this case, funds from this case accrued to the plaintiff will be returned to the PBA and Counsel will then have additional money to bring and prosecute the three other cases that it has pending against the City. He stated if Council can settle all these court cases once and for all, let bygones be bygones and finality for all concerned,, he would consider that. He thinks there was some interest for that but they are only settling one out of many more cases and to do that at this juncture would be financially irresponsible. He stated he is - 4 - 6/24/77. concerned about Mr. Clemens'civi~ rights; he thinks they should be judicated in a court of law and they shouldn't be decided as a matter of politics. He stated he would be concerned about the onerous burden put upon the City and Mr. Clemens, as raised by questions brought by Mr. Randolph. It is virtUally impossible to cover up the facts and be very difficult for the City Administration to silence its employees, verbally or in writing. He stated we have in this country the first amendment which is freedom of speech and he does not know how you can prevent anyone from speaking his own mind in the matter and that potentially is a detriment not only to the City but more potentially a detriment to Mr. Clemens. Therefore, he urges that Mr. Clemens has a right to his day in court; he should maintain that right and Council sho61d be guided by the decision in the proper form in a court of law. Mr. Oxner stated that Mr. Chapin was incorrect in stating the funds will be going back to the PBA; that has been resolved in a debate before the Counsel and the PBA has committed itself not to exercise their ~ights for reimbursement. He stated this is a moral -commitment that they intend to abide by. Mr. Chapin asked that if the majority of Council should vote to settle this case today would that be made part of the settlement. Mr. Oxner stated it is in writing; a letter was furnished to Council either through the attorney's office or the City Manager's office. Mr. Chapin acknowledged the receipt of the letter furnished to him by the City Attorney dated October 6, 1976, addressed to the Mayor and members of Council, written by Mr. Sowers, President of -PBA, and stated as lawyers this is not legally enforceable. If the majority of Council vote for this settlement, Mr. Chapin stated he thinks that a matter of binding obligation should be put in, then there would be no question as to the morals of the situation and there would be a binding, legal obligation on all three parties. Mr. Oxner stated he sees that as a contract obligation, a right of the PBA that existed prior to the time the letter was executed; after execution of the letter the PBA waived ~heir right rand he thinks i~s binding. Mr. Randolph stated he does not think this is a factor in this case because if this case is settled today for the amount indicated, he could care less what Mr. Clemens does with that money. Mr. Oxner stated he has the assurance of the PBA and is giving his assurance that none of this money is going to the PBA or to the attorneys of this case. He stated he would be glad to obtain a written writing that satisfies the contract of that, if it -is the desire of Council. Mr. Oxner stated the taxpayers' burden is his concern too but it was not put on the~ taxpayers by Mr. Clemens, it was put on the taxpayers by the defendants and the actions of certain employees of the City, not by Mr. Clemens. Mr. Clemens' suit had to do with the first amendment and his exercise and free exercise of that right and it was not just to his wrongful discharge or wrongful termination. It is not correct to say that the matter was already decided by his discharge from the City and its~ being upheld by the Civil Service Board. About a fifty page motion was filed before the Federal judge and that motion stayed pending for at least four months before the law suit was dismissed and the judge never acted on it; he did express some concern that there might be an issue that the matter had been resolved as to the wrongful termination. The suit filed was broader than that; the suit~ charge was that his civil rights were violated through the action of the City and its employees affecting the discharge and subsequently thereto invading his right of privacy and subsequently thereto by further actions of certain employees of the City. To correct an item of fact, the door was not closed in the Del Sol Hotel at the time. this meeting was taped and that's the matter that's 'sworn to in depositions taken in this law suit. Mr. Oxner stated that whether the City was correct or incorrect may be a question that can never be answered. They feel that the City was wrong but in telling this it could be said that he has a vested interest since he is counsel for Mr. Clemens and the same could be said of Mr. Blue and Mr. Becker and Mr. Saberson. Mr. Oxner stated who is right or wrong may never be resolved but when an amiable settlement is reached everybody wins and he feels this is the - 5 - 6/24/77. bottom line of this score. Mr.Weekes stated he agreed to the settlement offer of $25,000 to Mr. Clemens on the basis that he felt that Mr. Clemens was instrumental in helping Council to settle another case which he and the City's attorney deemed to be potentially a very serious case. He stated he has committed himself to Mr. Clemens that, if in fact, he was helpful in reaching the resolution of that case that he would look favorably on resolving his suit. Mr. Weekes stated his vote to agree to this settlement is based on that consideration alone and if anybody thinks that his affirmative vote means he intends to set a precedent for future cases that may arise, they are sadly mistaken. He stated he is doing this solely, because he made a moral commitment to Mr. Clemens; he questions the dollar value of Mr. Clemens'case but he made a commitment to Mr. Clemens and he felt Mr. Clemens was instrumental in helping Council reach a settlement and he does intend to live ~up to his obligation he made to Mr. Clemens. Mr. Sanson stated to Mr. Chapin that his rationale of settling suits makes a lot of sense, if you are considering this aspect of this total controversy; on the other hand if you are presented with facts by the City Attorney and Mr. Blue, perhaps Council had a very weak case and one which Council could use, he would probably jump at the chance of settling. Mr. Sanson stated he has tried throughout the entire process to keep in mind the total picture which included many different areas to this controversy wrapped up into one main problem which was the Police Department and the administration of it during a certain time period. The situation, as he views it, is Council was extremely lucky to settle one case which has been unanimously agreed; also, he agrees with Mr. Weekes in that he feels that Mr. Clemens helped in the settlement of that case. Perhaps the City does have a stronger case against Mr. Clemens because Mr. Clemens did not perhaps use the best judgment in trying to express himself during the period of turmoil and created a few more errors than Mr. Papy and those errors perhaps would allow the City to build a stronger case. The point is that, basically, both men were treated and persecuted for the same reasons. Mr. Sanson stated he is not so sure he wouldn't like to see the case go into court alone with Mr. Papy's case because the people who re&lly caused the problem are getting off scott free and they are some of the high ranking police officials who have been in this City for years and they ~hould feel ashamed for what they have had to put the town of Delray through and what they have cost the taxpayers. Mr. Sanson stated that Mr. Clemens is acting as a gentleman in good faith and he is voting to support him on this settlement on those grounds. Mr. Randolph stated he would like to make it known that his vote today is not sugar-coated; since the initiation of this particular action, he feels that still there are some people who 'are wrong in the police department. Those people are still there and probably will be there for many, many years to come. He stated he hopes and trusts that the citizens of DelraY~Beach will hurry up and wake up so that they can get themselves out of these continual law suits because this will not end it as long as the root of the problem is still there. The City was wrong and he has felt that way all along; he felt they were wrong in several of the other cases but they were not men enough to stand up to it. He stated $29,000 was paid for someone to come in and sugar-~oat that injustice that was done to these men and that was wrong. Now Council has to try to protect the tapes in which his voice does not appear and he made some fairly serious accusations in open Council meetings; however, he stated he was not called Before that committee so his voice will not be on th&t tape and he stated he will never ever vote for those tapes to be destroyed under any circumstances. He called the question. The City Attorney stated the removal of the derogatory material in the file was intended to be part of the motion as well. Mr. Randolph deferred the question for Mayor Scheifley to voice his opinion. - 6 - 6/24/77. Mayor Scheifley stated he thinks his position in this is different from the other members of Council in that he probably has had less contact with the people involved. To the best of his knowledge, he has never discussed this case with any of the principles involved and he has relied on information coming from the City Attorney. The first time he knew there was an incident at the Del Sol Hotel was when he was served the papers by the Sheriff in the suit. He stated he has never made any attempt to get into the factual situation on his'own, relying solely on the attorneys, and his position on this as a layman has been expressed very lucidly by Mr. Chapin. He stated he does not think that any settlement of this kind could possibly tie up all the loop-holes and end the situation. He can conceive of the first amendment of people calling other people out of town and no one will ever know what has been said. You are not talking about the few people who are employees of the City but members of the public who have opinions on this and will express opinions without any knowledge of the facts one way or the other. Mayor Scheifley stated there is a situation here which involves the system of justice and one of the greatest things that's wrong with the system of justice and one of the reasons there is so much crime is down to the basic principle of plea' bargaining which may or may not be directly involved but been alluded to here. There are many times when the question of right or wrong should be judicated in the courts and not compromised or swept under the table with a monetary settlement; he stated Mr. Chapin has explained all this and he agrees with him fully. Upon roll call, Council voted as follows: Mr. Chapin - No; Mr. Randolph - Yes; Mr. Sanson - Yes; Mr. Weekes - Yes; Mayor Scheifley - No. Said motion (first paragraph, page two) passed with a 3 to 2 vote. Mr. Randolph moved for the adjournment of the meeting, seconded by Mr. Sanson. Said motion passed unanimously. The meeting adjourned at 12:40 P. M. City Clerk APP~E~: ~ , ~ ~ // The undersigned is the City Clerk of the City of Delray ~each and that the information provided herein is the minutes of the meeting of said City COuncil for June 24, 1977 which minutes were formally approved and adopted by the City Council on~~ ./// /~ /Y . ity clerk NOTE TO READER: If the minutes that you have received are not completed as indicated above, then this means that these are -not the official minutes of the City Council.They will become the official minutes only after they have been reviewed and approved which may involve some amendments, additions, or deletions to the minutes as set forth above. - 7 - .6/24/77.