South Miami Police Chief Orlando Martinez de Castro has taken the first step toward filing a lawsuit against the city, alleging that city Commissioner Bob Welsh “violated and invaded Chief Martinez de Castro’s right to privacy, by publically disclosing private facts that were not of any legitimate public concern.”
The chief’s attorney, Paul Totten, outlined his claims in a July 1 letter to the city. Such a notice is required by state law before suing a local government.
The complaint stems from a January City Commission meeting in which Welsh asked City Attorney Thomas Pepe if the commission had to approve loans to employees greater than $5,000. Pepe replied that he did not know of a case where the city had loaned money to employees, and asked what the commissioner was referring to. Welsh said “the bariatric surgery of the police chief.”
In addition to invasion of privacy, the complaint also says that the city, because it loaned the chief money for the surgery, became like a healthcare provider or insurer, and therefore owed him a duty to keep his medical information private.
Local blogger Mazyer “Mike” Hatami, who writes The Straw Buyer, wrote in December: “Have you noticed how much weight the chief has lost? You’ll never guess who footed the bill for his bariatric surgery.” The Miami Herald about a week later reported that Martinez de Castro borrowed about $10,000 in 2012 from the city to cover part of the cost of the surgery, which he has been paying the city back in installments.
Under the city’s personnel rules and regulations, city employees can qualify for a loan for bariatric surgery if they meet certain conditions. Repayment of the loan is made through a payroll deduction over a maximum of four years, though the remaining balance is due when employment ends.
The case raises some unusual legal issues.
On the one hand, privacy is a constitutional right under the Florida Constitution, and employee medical information is exempt from release to the public under the state’s public-records law.
But on the other hand, public officials have broad immunity from lawsuits for statements made while doing their jobs — even if their statements were defamatory. This immunity evidently includes even statements that were false and malicious, according to a 1966 Florida Supreme Court case, McNayr v. Kelly.
The court said in that case: “It seems to be well settled in this State that words spoken or written by public servants in judicial and legislative activities are protected by absolute privilege from liability for defamation. However false or malicious or badly motivated the accusation may be, no action will lie therefor in this State.”
While most such cases have involved defamation, at least one involved an invasion-of-privacy claim. In this 1979 case, Densmore v. City of Boca Raton, a state appeals court threw out defamation and invasion-of-privacy claims brought by a fired building inspector against a city manager and commissioners for revealing why the inspector was fired. The court cited the McNayr case.
Welsh referred questions about the letter to City Attorney Pepe, who said the chief’s case has no merit.
There is no love lost between the chief and the commissioner.
For example, in August 2012, South Miami police arrested Warren Papove, a homeless, undocumented Canadian immigrant who Welsh and some neighbors would occasionally hire as a handyman. Welsh, who said he did not know Papove was undocumented, felt the arrest was politically motivated.
In the same January commission meeting where Welsh made the comment about the surgery, Welsh introduced a resolution of no confidence against the chief — only the city manager can fire the police chief — which was approved in a 3-2 vote.