"If He Dies, He Dies."

Hi folks. Let's talk some South Florida wins and losses this Tuesday.

First, Bilzen gladiator William K. Hill scored an impressive victory the other day, obtaining an order of dismissal in a case over the recalled Graco "Simplicity" cribs. I can't for the life of me follow the reasoning of the district judge but hey, maybe he was channeling my man, Death from Above, The Siberian Bull.

Second, one of our favorite local lawyers, former Miami City Attorney Jorge L. Fernandez, loses another one, this time involving the controversial Coconut Grove 300 Grove Bay Residences project:

The city's April 2007 approval ran afoul of state zoning laws on several fronts, the judges ruled in a 10-page opinion that was filed May 7 and began circulating Monday.

Mayor Manny Diaz had improper discussions with the developer ''away from the public earshot,'' and the project would be wildly out of character for the neighborhood, the judges found. The towers would be built on bayside property adjacent to Mercy Hospital.

The plaintiffs who filed suit to overturn the condo project included backers of Vizcaya Museum and Gardens. They argued that the condos -- slated to reach as high as 308 feet -- would spoil the museum's picturesque views.

''The court got it right,'' said Stephen Darmody, an attorney representing museum supporters. ``The city here simply did not pay adequate attention to the requirements of the law.''

The decision was a jarring setback for Related, which has emerged as one of the state's most prominent builders.

Related Group attorney Elliot Scherker said it was too soon to comment on whether the company would appeal.

''We believe that this project was properly approved,'' Scherker said. ``We respect the court's opinion, and we're considering our options at this point.''

You can read the opinion here.

Congrats to Steve and the legal team over at SHB that pulled off this win-win, one that is actually good for our community and for those who live and practice here.

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Jorge Fernandez Turns the Tables

Miami City Attorney Jorge Fernandez, embroiled in a probe by the State AG over expense account issues, served a subpoena on his bosses:

The lengthy request, filed by Fernandez's defense attorney, Barry Wax, asks for, among other things:

``All expense reports, expense affidavits, memorandums, receipts, vouchers and other documents submitted by all City of Miami Commissioners to the Finance Department for reimbursement of expenses paid to them by the City of Miami from 1998 to the present, and all memorandums, correspondence or e-mails approving or denying reimbursements.''

Fernandez is hired and fired by the City Commission. So how did this records request go over with his bosses?

''I think it's unfortunate that somebody would try to obtain leverage over elected officials when they're being investigated themselves,'' said Commissioner Marc Sarnoff. ``I was very disappointed to see that.''

Sarnoff said his office has nothing to hide. But he adds: 'It's not a valid criminal defense to say `Others do it, so why shouldn't I?' ''

City Commissioner Tomás Regalado, too, said there wouldn't be any questionable spending records uncovered from his office. ''I have never traveled with city money, and never requested any reimbursement from the city, so from me, he won't get anything,'' Regalado said.

No one has accused Fernandez of a crime. Yet as the city attorney braces for the possibility of charges, his lawyer said he's doing what any defense advocate would do.

''I'm analyzing every possibility in order to effectively represent my client,'' he said, ``so as to bring to bear appropriate information which will persuade the State Attorney's office that there has been no criminal intent.''

I certainly believe, as a legal matter, that how expenses were submitted and approved for other Miami officials is relevant (but not dispositive) to whether or not the City Attorney followed an established pattern and practice within the City for expenses for his own office. But as a political matter, given that the City Attorney is hired and fired by those he just subpoenaed, it's hard to say if this is a smart career move.

All I know is I would trust '85 UM grad Barry M. Wax's judgment on this issue way before I would that of the current City Attorney.

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"Many of Your Conferences Tend to Be At Places That People Are Going to Enjoy Going To."

That's Miami Chief Deputy City Attorney William Rossi, explaining in the Herald today why thousands in taxpayer funds were spent sending him to Hawaii for the ABA convention, and to Cancun for an ABA seminar.

Come on. This is an example of the type of half-truth that I have grown tired of as an attorney over the years. Sure, he's right, there are great seminars in exotic locales that are pitched to us all the time.

But we live in Miami, a place that apparently is still considered exotic when you are shelpper lawyer working in Des Moines. That's why there are a lot of great seminars right here in South Florida, as well as Orlando and Tampa. When you work for a poor city like Miami, shouldn't judgment and discretion counsel you to go to one of these local seminars instead?

And the ABA convention? The only attorneys who go to that work for big firms that are rolling in dough. Very little work gets done there, it costs a ton of money, and they are always scheduled someplace where you drop at least a few thousand to get there and back. If there was a legitimate reason for him to attend this particular convention, then why not just say that?

Well, he did attend one local seminar -- Screenwriting for Lawyers. Here's his explanation for that one:

Rossi said he took the class not because he was working on a manuscript, but because he thought it might include pointers on how to write legal briefs in attention-grabbing ways.

''Unfortunately, as it turned out, I think it was mostly focusing on how you write a screenplay,'' he said.

Ok, I don't really buy that he was clueless about the purposes of the course, but I give him credit for acknowledging that maybe it wasn't the best course he could be taking on the taxpayer dime.

As for his chief Jorge Fernandez, who I have criticized in the past, this is what the Herald found, in addition to the trips to Hawaii and Cancun for him and Rossi:

Fernandez's use of taxpayer money includes a roughly $300,000 renovation to his office, the purchase of two wide-screen, high-definition plasma televisions and the approval of thousands of dollars of travel, bonuses and other perks for the attorneys he supervises.

Those expenses are on top of the dozens of local meals Fernandez enjoyed using his $10,000 personal expense account -- including a $1,539 tab at the Rusty Pelican restaurant. State prosecutors are now investigating his expense account spending.

I have to be honest -- to me the plasma TVs and the office renovation sound reasonable. As he says, his office needed to be reconfigured to eliminate much of the outdated legal library, and they use the televisions for training, deposition review etc.

I don't know about the lunch expenses, but if he is truly meeting witnesses, experts, and interviewing staff etc., lunch at the Rusty Pelican isn't exactly Saturday night dinners at Nobu.

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Jorge Fernandez and Tomas Regalado -- Made for Each Other

One is a disgrace and totally incompetent, the other is a disgrace and...

Oh I can't get them straight anymore. Let's just go to the videotape:

The ex-official's generous benefits package included a provision for six months' severance upon separation from the city -- regardless of the circumstances. Commissioners allowed that contract to expire, but a recent outside legal opinion obtained by the city said the contract terms remain in effect because a new, different contract was never adopted.

Under the city charter, commissioners should have voted on a new contract for Fernandez immediately after last fall's election.

But by then, the pending investigation by prosecutors was public knowledge, and city leaders were hesitant to discuss Fernandez's future. Neither Fernandez nor the commission made an issue of the attorney working without a contract.

It's possible Fernandez could now sue for his payout. Fernandez did not return calls late Thursday.

If a protracted lawsuit ensues, legal fees alone -- even if the city wins -- could reach hundreds of thousands of dollars, Commissioner Tomás Regalado said.

''It is worth it,'' Regalado said, ``because the people of Miami cannot afford any more scandals.''

Fernandez joined the city about 3 ½ years ago, but didn't always have a severance-no-matter-what clause.

In 2006, commissioners -- with Regalado appointed to evaluate Fernandez's performance -- updated his contract and sweetened his compensation in a variety of ways, including removing language that left severance under the commission's discretion.

Regalado, while acknowledging he reviewed some parts of Fernandez's pay package back then, said in an interview Thursday that he didn't notice the severance changes during that review.

Fernandez's increased compensation wasn't approved without criticism. Then-Commissioner Linda Haskins noted its generosity and joined Commissioner Michelle Spence-Jones in voting no. It passed 3-2.

So let's recap -- Regalado was in charge of reviewing Fernandez's performance. He acknowledges reviewing the pay package but "didn't notice" the revisions which gave Fernandez a hefty severance irrespective of the reasons for termination. He then casts the deciding vote in favor of the Fernandez severance package giveaway.

The next year, when the contract expires under a cloud of investigation over charges that led ultimately to Fernandez' resignation, Regalado stands by and does nothing, allowing the contract to govern in the absence of a new written agreement.

Now he wants a lawsuit -- one it appears difficult if not impossible for the City to prevail on, given these facts -- because "it would be worth it."

Only in Miami, folks, only in Miami.

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More Gross Legal Incompetence and/or Corruption At City Hall

The saga of disgraced Miami City Attorney Jorge Fernandez continues. This time -- wait for it -- it involves a "poorly drafted" employment agreement that may give Fernandez as much as $250k in severance, irrespective of the reasons for his termination:

In a statement in Spanish and English, he formally admitted that he was reimbursed by the city for expenses unrelated to his job. One example was a $600 reimbursement he received after throwing a $1,500 party for his son at the Rusty Pelican Restaurant. Fernandez will have to pay back $3,000 in dubious reimbursements and another $11,000 for the cost of the investigation.

But his gray cloud may have a silver lining. "He certainly could be looking at more than $250,000," said Commissioner Marc Sarnoff. Sarnoff, who is also a labor attorney, said Fernandez's generous severance is a failure on the city's part. "This is poorly negotiated, poorly bargained for on behalf of the city, whoever did this," Sarnoff said.

Sarnoff said he has been told that Fernandez is in line for $186,000 in severance pay and another $86,000 for vacation and sick time. Commissioners have hired an outside lawyer to see if they have to pay.

According to the city attorney's contract, Fernandez is due severance whenever he "separates" from city employment. There's no exception, even for resigning under a corruption cloud. The language in Fernandez's latest contract seems absolute, Bogert reported. He's entitled to six months pay when he separates. That's a change from his first contract, which gave commissioners discretion on whether to pay up.

"Someone did a job very favorable to the city attorney," Sarnoff said. "I'd like to know who negotiated that because that person should be brought up before the commission."

Hmm, I wonder who did negotiate that sweetheart deal.....

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For the Good Times

Notoriously inept, incompetent, and...well, let me stop there.

Miami City Attorney Jorge Fernandez has "resigned":

Television station CBS4 reported that Fernandez brokered a plea arrangement with the Miami-Dade County State Attorney's Office. Fernandez will reportedly plead guilty to two counts of making false official statements, avoiding felony charges.

Fernandez is to be adjudicated as guilty, pay the city $3,093.44 in restitution and serve a year's probation. He also agreed not to seek work in the public sector.

Please -- we don't want him! Well, to be honest, I'm gonna miss him. We've had some fun with him, for example here, here, here, and here, so there's part of me that still wants to see his high-flying freefalls continue, if nothing than for sheer entertainment value.

But then again, we'll have a chance to chuckle again once he attempts to enter private practice.

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But It's Literature, I Tell You!

Let's see, Miami City Attorney Jorge Fernandez is either grossly incompetent or worse (see testimony in fire fee scandal), is unable to review contracts (see Orange Bowl fiasco), and takes expensive trips to Hawaii on the taxpayer dole.

He also sends lucky lawyers in his office to screenwriting class.

Maybe that's where Assistant Miami City Attorney Bill Juliachs came up with this literary gem:

A Dec. 31 office-wide e-mail from Juliachs has stirred controversy for including the following quote from 18th century French writer-philosopher Voltaire:

``I would like to know which is worse: being raped a hundred times by negro pirates, having a buttock chopped off, running the gauntlet of the Bulgars . . . being dissected, rowing in a galley, in short, suffering all the misfortunes we've all suffered, or being stuck here doing nothing?''

Juliachs intended the e-mail to be motivational, but many took it to be offensive.

''Totally uncalled for,'' Fernandez described it.

Juliachs has been formally reprimanded and ordered to attend diversity training. He must also write a letter of apology to coworkers. He did not return phone calls seeking a comment Monday.

''He quotes ad nauseam FDR, Descartes and Plato -- and Shakespeare galore,'' Fernandez said. 'He can never write a simple little e-mail, `Get your butt to the training field.' ''

Following the Voltaire quote, Juliachs stressed in his e-mail the importance of employees attending their last football practice before the Jan. 5 city-county showdown. Then he quoted former President Theodore Roosevelt: ``The trumpet call is the most inspiring of all sounds . . . ''

While critical of his employee's choice of words, Fernandez noted the charity game raised ''hundreds and hundreds'' of canned goods for homeless-services organization Camillus House.

Juliachs, Fernandez said, ``feels extremely remorseful and very, very beside himself.''

Yet the e-mail reignites a tense subject at the Miami city attorney's office: whether the department is an unfriendly environ for black attorneys.

Since Fernandez became city attorney in 2004, some of the department's most-prominent black attorneys have left for jobs elsewhere.

Hey, I just finished Mein Kampf and The Turner Diaries, maybe I should quote some provocative passages in my next brief.

But it's literature, I tell you!

Also, I don't know Bill Juliachs, but dude -- if you are quoting Voltaire and Teddy R. in your intraoffice emails, you might be a bit of of a poseur. Don't worry -- people will know you are smart if you don't try so hard.

Or will they?

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