South Miami

Former Police Chief Orlando Martinez de Castro wins ruling against South Miami

Former South Miami Police Chief Orlando Martinez de Castro
Former South Miami Police Chief Orlando Martinez de Castro El Nuevo Herald File

Former South Miami Police Chief Orlando Martinez de Castro is finally getting some closure surrounding his departure from the city of South Miami.

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.

On Tuesday, Miami-Dade Circuit Court Judge Jose M. Rodriguez ruled in an 11-page order that Martinez de Castro never served as acting city manager because he was never properly appointed to the position.

“I’m delighted,” Martinez de Castro said. “It cleans me up. Everything they said about me is not true.”

Martinez de Castro originally filed suit in March 2013, claiming the city breached his contract by not paying him a five percent performance-based raise and a three percent longevity raise. The city responded with defenses, including a claim that Martinez de Castro’s contract was not legal, and if it was legal, the city claimed that he had resigned by law for taking the position of acting city manager.

When then-City Manager Hector Mirabile was absent, Martinez de Castro filled in for him. But Martinez de Castro and his attorney, Paul G. Totten, of Franqui Totten, LLP. claimed that he never officially became the “acting city manager,” because the city commission never passed a resolution or ordinance saying that he was acting city manager.

“The real delineation became, in order for the city of South Miami commission to act, the charter says they have to act by ordinance or written resolution,” Totten said. “There was never an ordinance or written resolution approving Orlando as the acting city manager at any time. Because of that, there could have not been an appointment to the position of acting city manager. That was the part that was decided by Judge Rodriguez.”

On Oct. 8, 2010, the mayor and city commission voted to authorize a five-year employment agreement with Martinez de Castro to serve as chief of police. He was fired nearly three years later, when the commission determined he had also worked 45 days as acting city manager.

One person can’t be both city manager and police chief because of the constitution’s ban on dual office holding. According to a the Supreme Court ruling of Holley v. Adams: “The acceptance of an incompatible office by one already holding office operates as a resignation of the first.”

“Last week (Rodriguez) ruled on the arguments,” Pepe said. “He ruled that the city had breached the agreement and that the agreement was not illegal and that he had not resigned by operation of law. There still remains the city’s other affirmative defenses which includes the defense that he had breached the contract beforehand and other matters.”

“Like my attorney is saying, they did it after the fact,” Martinez de Castro said. “It happened 12 to 14 months after I was supposedly a point of contact and then they decided to do what they did to me. It doesn’t make any sense at all. I didn’t get compensated. I didn’t have full authority. I never sat in that office. I was just a point of contact.”

Rodriguez granted the motion for partial summary judgment and for the breach of contract and said that Martinez de Castro’s contract was legal and ruled that it was improper for Martinez de Castro to be appointed as acting city manager because it wasn’t done by resolution or ordinance.

“I think that the judge vindicated my client,” Totten said. “With regard to the fact that it was obvious that they concocted this acting city manager thing to try to get out from under the contract without compensating my client. That’s why we’ve had to fight this battle.”

Totten said the only thing left to determine is “how much the contract was worth and the amount of compensation that is owed to my client.”

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.

“It surprised me that they would claim I was acting city manager, especially with no validity,” Martinez de Castro said. “There is not foundation to their allegations. I feel sorry for the good citizens of South Miami … that the taxpayers and now what they’ve given me. It belongs to them. Instead of using it for their behalf and the betterment of living in South Miami. I feel bad because they made this happen and it had nothing to do with me. But that was their choice, the commissions, not mine.”