09/21/2012 Agreement AGREEMENT
THIS AGREEMENT ("Agreement") is entered into on September 10, 2012. by and
between Monroe County, Florida, acting through its Board of County Commissioners ("Board"
or"BOCC"), a political subdivision of the State of Florida, whose main business address is 1100
Simonton Street, Key West, Florida 33040; David P. Kirwan, Specially Appointed Temporary
Hearing Officer ("Hearing Officer" or "Kirwan" as appropriate), whose present address is 5800
Overseas Highway, Unit 4, Marathon, Florida 33050; and retired Sheriff Richard Roth ("Roth or
Investigator").
WHEREAS, pursuant to Chapter 125, Part III, Monroe County employs a County
Administrator; and
WHEREAS, on April 16, 2008, the BOCC hired Roman Gastesi to serve as its County
Administrator,a position which he continues to serve in today; and
WHEREAS, F.S. 125.74, Monroe County Code section 2-58, and the Monroe County
Personnel Policies and Procedures Manual make the County Administrator responsible for
discipline of employees; and
WHEREAS, the County Administrator is unable to discharge his duties outlined in
Florida Statutes Section 125.74(1), subsections (k) and (I), and Chapter 9 of the Monroe County
Personnel Policies and Procedures Manual with respect to imposing discipline on subordinate
employees arising out of the investigation into the purchase and misappropriation of County-
purchased iPhones and iPads by the former Senior Administrator of the County's Technical
Services Department("iPhone Matter"); and
WHEREAS, the BOCC has determined that it is in the best interests of the County, its
employees, and the public to bring in an outside party to serve as the Hearing Officer for the
limited purpose of considering and imposing discipline, if appropriate, on County employees for
their conduct in the iPhone Matter; and
WHEREAS, the responsibilities of the Hearing Officer shall only be provided in order to
effect a disciplinary process stemming from the Spring 2012 Grand Jury Report, and no other
responsibilities of the County Administrator are to be assumed;
WHEREAS, the BOCC and Kirwan have agreed that an investigator could be of
assistance to the Hearing Officer to assist with the process; and
WHEREAS, the retired Sheriff of Monroe County Richard Roth has agreed to assist
Kirwan as his investigator and Kirwan has agreed to Roth's assistance; and
WHEREAS, negotiations between Monroe County, Kirwan, and Roth have resulted in
this mutually acceptable Agreement;
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NOW THEREFORE, in consideration of the covenants and promises contained herein,
the PARTIES hereby agree as follows:
1. SCOPE OF SERVICES. David P. Kirwan is hereby retained as an independent contractor
by the BOCC to serve as the Hearing Officer for the limited purpose of considering and
imposing discipline, if appropriate, on County employees who fall under the jurisdiction of
the County Administrator of Monroe County, Florida, arising out of their conduct in the
iPhone Matter. In this regard, the parties contemplate that the scope of services shall include
all actions that would customarily be taken by the County Administrator under Chapter 9 of
the Personnel Policies and Procedures Manual if he were acting as the hearing officer,
including but not limited to: review of the relevant documents related to the iPhone Matter;
preparation of notices to County employees outlining alleged violations of Monroe County
personnel policies; acting as hearing officer for pre-determination hearings; and preparation
of outcome letters following the pre-determination hearings. The Hearing Officer will
coordinate his efforts with retired Monroe County Sheriff Richard Roth, who has agreed to
assist Kirwan with his duties under this agreement as his Investigator. Roth shall also be
considered to be an independent contractor of both Kirwan and the BOCC. The scope of
services may also include appearances in front of the BOCC. While no express time limit is
set in this Agreement for completion of services, it is the desire of the BOCC that Kirwan
and Roth begin to discharge the duties described in this Agreement immediately upon
execution of this Agreement and that the disciplinary process be completed as soon as
possible,while taking into consideration the participants' rights to due process.
2. DISCLOSURE OF FINANCIAL INTERESTS. Due to the very limited extent of
engagement, it is not intended that this contract result in Kirwan or Roth being deemed a
`local officer as provided in Section 112.3145, Florida Statutes.
3. INDEPENDENT CONTRACTOR. The Hearing Officer and his Investigator will be
considered as independent contractors of the BOCC, not employees. Neither Kirwan nor
Roth shall be subject to the County's Personnel Policies and Procedures Manual nor shall
either be entitled to any benefits or leave. They will set their own hours as appropriate.
4. DUTIES
a. HEARING OFFICER. During the time period covered by this Agreement, the
Hearing Officer shall perform only those duties outlined in paragraph (1), above,
which the County Administrator would have been a position to perform pursuant to
Section 125.74(1)(k)&(1), Florida Statutes, had the County Administrator's
involvement in the iPhone Matter not necessitated the hiring of the Hearing Officer.
In performing said duties, the Hearing Officer shall have all authority conferred on
the County Administrator by Section 125.75(1)(k) & (1), Florida Statutes, as well as
the Monroe County Personnel Policies and Procedures Manual.
b. INVESTIGATOR. Sheriff Roth will serve as the Hearing Officer's Investigator. In
that capacity, Sheriff Roth will assist the Hearing Officer in conducting any
interviews and preparing reports and documents that might be necessary. All
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expenses for which Sheriff Roth seeks reimbursement shall be submitted through
Kirwan's office.
5. POST-CONTRACT RESTRICTIONS. Nothing in this Agreement shall be deemed to
impose any restrictions on the Hearing Officer and/or the Investigator with respect to their
ability to appear before the Commission on behalf of others once they completes the terms of
service of this Agreement.
6. TERMINATION OF AGREEMENT. This Agreement may be terminated prior to
completion of the scope of services by either party with five days written notice, in writing,
served by personal service. Notice to the Hearing Officer or Investigator shall be served on
the address listed above for Kirwan. Notice to the BOCC shall be served on Monroe County
Attorney's Office, lilt 126 St., Suite 408, Key West,FL 33040.
7. COMPENSATION. Hearing Officer shall be paid at an hourly rate of two hundred fifty
dollars ($250.00) per hour for the scope of services outlined in paragraph (1), which shall
include research; preparation of hearing notices; hearings; travel time; review of personnel
files; and preparation of outcome letters. Investigator shall be paid at the hourly rate of fifty
dollars (550.00) per hour for investigation incident to the scope of services outlined in
paragraph (I)above. The Hearing Officer and Investigator shall be paid upon presentation to
the Clerk of an invoice showing hours spent by day, with sufficient detail to be able to allow
the County to identify the specific work that was performed.
8. TRAVEL REIMBURSEMENT. In addition to the compensation outlined in paragraph (7)
above, the BOCC agrees to reimburse Hearing Officer and Investigator for the costs of
mileage, meals, other expenses and lodging incurred by them that may be necessary,
required, or appropriate in fulfilling their duties and responsibilities under this Agreement
pursuant to rates set forth in the Monroe County Code. Said claim for travel reimbursement
will be submitted on a form supplied by Monroe County, with copies of invoices for meals,
lodging,parking and other items attached.
9. INDEMNIFICATION AND COOPERATION.
A. Indemnification. The BOCC agrees to defend, hold harmless, and indemnify the
Hearing Officer and Investigator against any tort, professional liability, or other legal
demand, claim, or action related directly or indirectly to the Hearing Officer's and/or
Investigator's actions under this Agreement.
B. Cooperation. In the event of actual or threatened litigation and/or administrative
proceedings involving the BOCC or the County which arises out of an action or actions
which occurred, or are alleged to have occurred, while Kirwan and Roth were acting
under the terms of this Agreement, Kirwan and Roth agree to cooperate with the BOCC
and its counsel in defending and resolving the litigation or proceeding. In such regard, the
BOCC agrees to pay Kirwan's and Roth's reasonable travel and subsistence expenses
incurred in cooperating with the BOCC and its counsel, including preparation for and
actual discovery, settlement,and trial and hearing of such matters.
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C. The Hearing Officer and Investigator agree that, unless required by law, they will not
cooperate with or assist any party, person, or entity who has, had, or may have, or asserts
that he, she or it has or may have any claim of any nature against the BOCC or the
County, its agents, officers, or employees, unless the BOCC or its authorized agent
expressly consents in writing to waive this provision of this Agreement.
D. The Hearing Officer and Investigator will not disclose to any person, party, or entity
any confidential, proprietary, time-sensitive, or non-public information relating to the
BOCC, the County,and its operations unless required by law to do so.
10. GOVERNING LAW; ATTORNEY'S FEES AND COSTS; VENUE. This Agreement is
made in the State of Florida and will be governed by Florida law. The prevailing party in any
litigation, arbitration, or mediation relating to this Agreement will be entitled to recover its
reasonable expenses and attorneys' fees from the other party for all matters, including but not
limited to, appeals. Monroe County, Florida will be the proper venue for any litigation
involving this Agreement.
11. FORM OF AGREEMENT. This Agreement may be signed in more than one counterpart,
each of which shall constitute an original of this Agreement. Paragraph headings are for
convenience only and are not intended to expand or restrict the scope or substance of the
provisions of this Agreement. Wherever used herein, the singular will include the plural,
the plural will include the singular, and pronouns will be read as masculine, feminine, or
neuter as the context requires.
12. OTHER TERMS AND CONDITIONS.
A. If any provision, term, or portion of this Agreement shall be held to be
unconstitutional, illegal, invalid, or enforceable by a court of competent jurisdiction, the
remaining terms, conditions, and portions shall remain in full force and effect as if
originally agreed to without the term, condition, or portion that has been determined to be
unconstitutional, illegal, invalid or unenforceable.
B. The waiver by any part of a breach or violation of any term or provision of this
Agreement by any other party shall not operate or be construed as a waiver of any
subsequent breach or violation by the other party.
C. This Agreement incorporates and supersedes all prior negotiations,
correspondence, conversations, agreements, and understandings applicable to the matters
contained herein. The text herein constitutes the entire agreement between the BOCC and
the Hearing Officer, and this Agreement cannot be amended except by a written
document mutually agreed to and executed with the same formalities as this Agreement.
D. This Agreement is personal to Kirwan and Roth and shall not be assigned or
subcontracted without the prior express written consent of the BOCC.
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E. All records generated in the course of performance of this Agreement shall be
treated as public records in accordance with Florida public records law. All such records
shall be maintained for a period of no less than five(5)calendar years after conclusion of
the services. All such records may be given to the County at the conclusion of these
services, in which case the responsibility for record retention and compliance with
Florida public record law as to these records is transferred to the County.
W H E R E F 0 R E, the parties hereto have signed and sealed this Agreement on the
date first above written.
(Seal) BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
ATTEST:(� Danny ���L. oolhage, Clerk
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By: tLC. LQ "S'o) By:
Deputy Clerk Mayor
WITNESS:
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(Signature) AVID P. IRWAN
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(Print name)
(Signature) RICHARD ROTH
(Print name)
a o MON OE COUNTY ATTORNEY
A RO EB tr FO M:
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YNTHIA L.r,i
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ASSISTANT„COU TY ATTORNEY
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E. All records generated in the course of performance of this Agreement shall be
treated as public records in accordance with Florida public records law. All such records
shall be maintained for a period of no less than five (5)calendar years after conclusion of
the services. All such records may be given to the County at the conclusion of these
services, in which case the responsibility for record retention and compliance with
Florida public record law as to these records is transferred to the County.
WHEREFORE, the parties hereto have signed and sealed this Agreement on the
date first above written.
(Seal) BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY,FLORIDA
ATTEST: Danny L. K�olhage,Clerk
By . ptBy:
Deputy Clerk Mayor
WITNESS:
(Signature) DAVID P.KIRWAN
j,
(Print name)
(Signature)aI RICHARD ROTH
R'4n L. i—rl,nerrncn
(Print name)
MONR E COUNTY ATTORNEY
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AP OVEJ,I AS jOr609N:
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a
NTHIA L. ALL
d c Date ��B ASSISTA T COU�e n r aNTY ATTORNEY
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