Following his victory for partial summary judgment on March 17 against the city of South Miami, former Police Chief Orlando Martinez de Castro is coming back for more.
Martinez de Castro has several outstanding and pending actions, including lawsuits against City Attorney Thomas Pepe, Mayor Philip Stoddard, Commissioner Bob Welsh and the city itself, according to Paul G. Totten, his attorney.
Totten, of Franqui Totten, LLP, said that the suit against Pepe contends breach of fiduciary duty, in part for not reviewing and insuring the legality of the resolution that resulted in Martinez de Castro’s termination.
“Since the judge ruled that the resolution that had terminated Mr. Martinez de Castro was in violation of several aspects of Florida law and the Florida Constitution, we feel that it was his fiduciary duty as city attorney to properly protect my client from losing his job since he pretty much was the conduit to that,” Totten said.
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Martinez de Castro was fired in 2013 after the city found he violated his contract by serving as acting city manager while also serving as chief. Miami-Dade Circuit Court Judge Jose M. Rodriguez’s judgment ruled that Martinez de Castro never served as acting city manager because he was never properly appointed to the position.
Totten said that he has an expert reviewing Martinez de Castro’s contract to calculate the damages owed to his client, and his attorney’s fees. After concluding the amount, Totten will approach the commission to make his demands.
“Depending on how they respond, we will proceed forward,” Totten said. “We will file a motion for final summary judgment and bring it by the judge. If the judge doesn’t rule on that, then we will go ahead and notice the case for trial and put it before a jury.”
The defamation lawsuit against Stoddard relates to a personal blog, according to Totten.
“He used to maintain a personal blog where he posted a lot of things about Orlando, including a litany of crimes he alleged my client committed,” Totten said. “Of course he hasn’t been charged, or convicted, for that matter of any crime so we feel that accusing a chief of police, who has lived his entire life working in law enforcement, of crimes when there is no factual basis to back it up, is the textbook definition of defamation per se.”
Stoddard’s blog is now only open to invited readers.
“Everything in my blog I had evidence for,” Stoddard said. “So I argue that everything I wrote was true. They have the burden of showing that it is false and that I knew it was false. However, I contend that I knew it was true.”
In his blog, Stoddard claims Martinez de Castro committed several violations relating to the state forfeiture fund.
Stoddard added that he is also being sued by Martinez de Castro’s wife for loss of consortium, or the inability of one’s spouse to have normal marital relations. The mayor added that the former chief has been involved in several ethics violations.
“He was charged with four ethics violations and they reached a settlement agreement in which he pled no-contest to three of them and they dropped one.”
One of the ethics violations resulted in Martinez de Castro being ordered to pay a $2,000 settlement agreement in investigative costs to the Miami-Dade County Ethics and Public Trust because of a complaint that the South Miami Police Department had been doing business with a tag agency owned by Martinez de Castro’s wife in 2011.
There is an invasion of privacy lawsuit against the city and Welsh, relating to a surgical procedure that Martinez de Castro underwent.
“Mr. Welsh, who has had vocal issues with my client as well, decided to discus a surgical procedure that my client underwent, that the city partially financed and named him by name at a city commission meeting, which is still online,” Totten said. “The case is very clear that if you want to discuss whether or not a city can continue to finance a medical procedure, is one thing, but the privacy associated with a procedure that’s already been financed, already been approved by the commission, has already occurred ... naming Orlando is again a textbook definition of invasion of privacy because there is case law that says, undergoing a medical procedure, unless it is something that is contagious or an immediate threat to the public at large, there is no reason to identify the person who specifically had this procedure.”
Stoddard said the information, for the $10,000 loan for bariatric surgery, was already made public.
“He is claiming that Welsh revealed confidential information,” Stoddard said. “In fact, the chief had already revealed that information, so it wasn’t confidential anymore.”
Martinez de Castro is also suing Welsh, alleging defamation for “distributing, publicizing, printing, and duplicating” fliers with “defamatory comments” directed toward him during last year’s election, according to Totten.
All of the lawsuits are in Miami-Dade County Circuit Court.
Although it has not yet been appealed, Stoddard claims that Rodriguez’s judgment contained several contradictions relating to the dual-office provision.
“One of those exceptions was if the two positions are compatible such as when one position does not supervise the other,” Stoddard said. “Obviously the city manager supervises the police chief. So, Martinez de Castro acting as city manager was supervising Martinez de Castro as police chief. Right there the judge contradicts himself.”
“The other exception the judge pointed out is if the person only sits in the seat and does not exercise any authority of the position. However, on five occasions, Chief Martinez de Castro was fully authorized to exercise all of the authority of the city manager. And he signed a contract, approved payroll, and he sat in on shade meetings, none of which he could legally have done unless he was in fact acting in the capacity as city manager. There again, the exception does not apply.”
Martinez de Castro joined the city in 1998 as assistant director of public works. He then became director of public works and assistant city manager before his first stint as police chief in 2003.
“I feel the city still has a strong case,” Stoddard said. “I feel that my cases are strong as well. The city is consulting with an expert appellate attorney and we will make our decision very soon on the most financially responsible way to proceed.”