Friday, November 24th, 2017
FIRED/REHIRED : In this series, The Washington Post explores how police chiefs are often forced to put hundreds of officers fired for misconduct back on the streets.
In 2013, homicide detectives in Miami were finally closing in on suspects in the robbery and killing of a manager at a cellphone store six years earlier. A break in the case had led them to a colleague: police officer Adrian Rodriguez.
Rodriguez had been employed at the cellphone store before joining the Miami Police Department and was working there the night the manager was ambushed and shot to death. Investigators had come to suspect that the crime was an inside job, possibly involving Rodriguez, his brother and his father.
When Rodriguez refused to cooperate with detectives, the police chief fired him. Rodriguez then did what many other South Florida police officers have done to get their jobs back — he turned to Fort Lauderdale labor attorney Gene Gibbons.
Gibbons, who represents officers in job appeals on behalf of police unions across Florida, has over the past eight years won reinstatement for more than 22 fired officers, often returning them to work over the objections of police chiefs who say they are unfit for duty.
A former cop, Gibbons has prevailed by finding the weak point in a department’s case, no matter how severe the alleged misconduct. He frequently capitalizes on the mistakes of police officials, attacking sloppy investigations and hammering departments over missed deadlines.
“The city gives me ammunition to win,” Gibbons, 47, said of his strategy.
In May, Gibbons won again — persuading an arbitrator to order Rodriguez’s return to the Miami police force.
“He’s not fit to be a cop,” said Miami Police Chief Rodolfo Llanes of Rodriguez. “How could we face the victim’s family if we didn’t fire him?”
Llanes claims Gibbons’s success is undermining his effort to hold his officers accountable. Gibbons’s efforts have forced Miami to reinstate six of the 12 officers the chief has fired since 2014.
The work of labor lawyers like Gibbons helps explain why hundreds of officers nationwide have won back jobs through a quasi-judicial process known as arbitration. In August, The Post reported that since 2006 police chiefs at 37 of the nation’s largest police departments have been forced to rehire more than 450 officers, or nearly a quarter of the officers they have fired for misconduct. Often the officers conceded some aspect of the underlying misconduct, but arbitrators, swayed by union attorneys, overruled the firings.
For Gibbons, an affable, barrel-chested man, the path to becoming an advocate for embattled police officers began when he was a teen growing up outside Philadelphia in the early 1980s.
Then 16, Gibbons was driving home in the family station wagon when a Philadelphia police officer pulled him over. Gibbons sat quietly while the officer ran his license. When he returned, the boy asked the officer why he had been stopped. Gibbons said the officer abruptly punched him in the face and told him to go home.
“I was stewing mad,” he said. “The police had tremendous power.”
Gibbons wanted to be a police officer himself. He studied criminal justice at Lycoming College in Pennsylvania and then moved to Florida to become an officer at the Coral Gables Police Department. When the city threatened to reduce pension benefits for officers, Gibbons ran for president of the Coral Gables officers’ union and won.
“I thought I’d enjoy the fight,” he said.
Eventually, Gibbons realized he could do more to advocate for the rank-and-file officers as an attorney working for the police unions. He obtained a law degree from Florida’s Nova Southeastern University, left the force and started his own firm. He and his partner now represent about 3,200 officers on behalf of nine police unions across Florida.
“Gene Gibbons gave me back my life with his diligent fight,” said Mike Muley, an officer in Miami Beach who was fired after he developed a drinking problem and unholstered his gun in a club. In a job appeal, Gibbons forced Miami Beach to rehire Muley and provide him with treatment.
On occasion, the attorney has won cases against seemingly insurmountable odds. He sent back to work a Miami Beach detective who in 2013 tested positive for cocaine — by arguing that the results came from a home remedy for erectile dysfunction.
Gibbons said it’s important that officers be held accountable, but police chiefs are too quick to fire officers over misconduct. In job appeals, Gibbons tries to show arbitrators that the officers are duty-bound people, humbled by a terrible mistake.
‘I’m on top of you’
In Plantation, the police chief felt that Officer Pete Saglio’s conduct had crossed the line: While at work, Saglio used police department equipment to send a 26-second masturbation video to a woman whose case he was investigating.
Photo by Scott McIntyre for The Washington Post
Attorney and former police officer Gene Gibbons at his office in Fort Lauderdale, Florida, on June 20. Gibbons represents nine police unions in Florida.
The episode began in January 2015 when Saglio, working as a detective, began to look into anonymous flower deliveries to the woman’s home. One of the deliveries included a potentially threatening message.
Saglio reached out to the woman by text to discuss the case. Over the next two months, he sent hundreds of messages, around the clock, some of them salted with suggestive comments, according to copies of the messages, which were among the internal affairs files obtained by The Post in an open records request.
“I’m on top of you,” he wrote in one. Seconds later, he added: “OMG, I meant ‘it.’ ”
He joked in several texts about wearing a tightfitting superhero outfit: “I know secretly you want to see those tights.”
He told her that he was giving her case extra attention.
“I can’t remember ever doing the things I did for you,” he wrote in another text. “For anyone Lol.”
None of the messages explicitly suggested a sexual relationship, but the woman said she felt that Saglio was testing her boundaries.
“The officer was creeping me out with some of his comments,” the woman said in an interview. (The Post’s policy is to not identify victims of sexual assault or abuse.) “He told me I owed him.”
But the woman said she was afraid to confront Saglio or his supervisors about the troubling messages because she did not want to jeopardize the investigation.
That changed on March 3, 2015, when Saglio sent her the video.
“I opened it, and I started screaming, ‘Oh my god. Oh my god. He sent me a video and he’s masturbating!’ ” she recalled. “My friend said, ‘Oh my god, honey, call the police!’ and I said, ‘He is the police.’ ”
Minutes after she received the video, Saglio called her and said he had inadvertently sent something that wasn’t meant for her and not to open it, according to a statement Saglio later gave internal affairs investigators.
The woman immediately called her attorney. He reported it to Plantation city officials and called and told Saglio not to contact the woman further.
Saglio then destroyed the mobile device he used to send the video and told supervisors he had mistakenly sent a video, according to his statement.
Chief W. Howard Harrison fired Saglio in April 2016 after he concluded that the detective violated three department policies, including one that requires officers be of “moral character.”
Saglio appealed, and Gibbons argued in the December 2016 arbitration hearing that firing was too harsh because Saglio meant to send the video to his wife. Florida law, he added, does not specify masturbation as a moral character violation for police officers.
“This case is about something that everybody in this room has done, and I’m not talking about masturbation,” Gibbons said in the hearing. “I’m talking about accidentally sending something on their phone to the wrong recipient.”
Photo by Scott McIntyre for The Washington Post
Miami Police Chief Rodolfo Llanes, shown at the department on June 20, says Gibbons’s success is undermining his ability to hold officers accountable.
Harrison said officers should not be sending pornographic videos at work and that he could no longer rely on Saglio’s judgment as an officer.
“He sent a video of him masturbating, while on duty, using the city WiFi, and you’re going to tell me that’s not a moral character violation?” Harrison said in the hearing.
In March, arbitrator Mark Scarr sided with Gibbons. He reduced the firing to a suspension and ordered that Saglio be demoted and retrained, according to the ruling.
“Had there not been arbitration or some similar process, here is an individual that would have been strung out, without a job, I think unjustly,” Scarr told The Post.
Saglio did not respond to requests for comment. His wife declined an interview.
The department removed Saglio from his detective assignment and returned him to duty as a patrol officer.
“What kind of message does the arbitrator’s decision send?” asked a Plantation police legal adviser, Melissa Zelniker-Presser, in an interview with The Post. “We have to remember that through all of this there is a victim. A very real victim whose life will forever be affected by what Officer Saglio did.”
Patterns of misconduct
In the city of Miami, the officers who have been fired can have long records of misconduct. Many have been returned to work, however, after Gibbons has convinced an arbitrator that a pattern of problems doesn’t justify a firing.
Over the past 12 years, Officer Jean-Marie Jean Phillipe has been reprimanded for alleged misconduct 12 times, including four suspensions, according to police disciplinary records. His offenses have ranged from using his badge to pressure a pawnshop employee for a better deal on a computer to mishandling criminal evidence.
In 2012, Jean Phillipe disobeyed department orders not to drive because his license was suspended. According to police disciplinary records, he has failed to show up for a court appearance twice, failed to come to work on two occasions without explanation and has been involved in two avoidable crashes in his patrol car, records show. He also was disciplined after he was allegedly caught dozing at the front desk of a police station and sleeping in his patrol car behind a warehouse.
In 2015, police said they discovered Jean Phillipe sleeping on his shift a third time. Just after midnight, a patrolman found him in his police cruiser on a quiet road. According to the officer, Jean Phillipe was sleeping so deeply that the officer could not wake him with a police siren. When a supervisor arrived and finally rousted Jean Phillipe, the officer ignored him and drove to the police station, records show.
The police department had had enough and Llanes fired him in August 2015.
“Is he a killer cop? No,” Kevin Jones, assistant city attorney for Miami, who represented the department in the firing, said in an interview. “Is he an incompetent cop? Yes.”
In an interview, Jean Philippe, 47, generally disputed his disciplinary record and said supervisors have reprimanded him without reason.
“I can tell you, my records show that I’m among the best police officers in Miami,” Jean Phillipe said.
“Am I perfect? No. But I come to work and do exactly what I’m supposed to do. I go out there and do my job with honesty and integrity with great passion for the city of Miami.”
When Jean Phillipe’s firing went to arbitration in November 2016, Gibbons and the officer offered various explanations for the behavior. Jean Phillipe testified that a few sips of an energy drink rendered him semiconscious.
Gibbons also argued that the firing was too harsh. He pointed out that the two instances of misconduct cited by the department to show disciplinary options had been exhausted were under appeal or overturned, including the case when police said he was sleeping in his car behind the warehouse in 2012. (The city’s disciplinary action was recently upheld on appeal.)
In the 2016 case, the arbitrator said he thought the officer’s explanation for his behavior was “contradictory and/or illogical” but agreed with Gibbons’s assertion that the department had gone too far in firing him. In February, the arbitrator ordered Jean Phillipe reinstated, ruling that there was “just cause for a severe disciplinary penalty, namely, a lengthy suspension.”
“It’s difficult to explain to citizens how it’s possible that somebody gets their job back after exhibiting this kind of conduct,” Llanes told The Post.
Jean Phillipe has been returned to patrol.
When he was fired, he said he worried about providing for his family and feared that he would land in poverty, conditions he knew growing up in Haiti.
But he said Gibbons assured him, “Look, Jean, there is a good chance you’re going to get your job back. Just go with the flow.”
“He was right all along.”
A robbery and a homicide
The firing of Adrian Rodriguez dates to Oct. 28, 2007, when he was 20 and working at a Miami cellphone store. He had recently applied to become an officer with the Miami Police Department.
That night, a security camera at a nearby restaurant recorded Rodriguez, store manager Yosbel Millares-Vega and two other employees after they had exited the back of the store into an alley.
Two gunmen suddenly appeared and demanded money, according to witnesses. Millares-Vega, a 27-year-old former Marine who had served in Iraq, threw a bank bag containing about $30,000 to the ground. He was shot anyway. The gunmen then fled down the alley. Millares-Vega later died.
The crime scene offered little evidence aside from two bullet casings.
Detectives interviewed Rodriguez for 10 hours that night at police headquarters, according to Gibbons. He gave a description of the potential suspects, which led to the arrest of two people, who police later determined had no involvement. The investigation stalled.
Rodriguez, meanwhile, was hired by the department in 2009 and eventually assigned to a patrol district.
In 2011, detectives got a break in the case. Someone gave them a recording of a conversation between Rodriguez’s younger brother Brian and a relative, who was in jail.
On the call, Brian told the relative that he knew the relative had been talking to people about something Brian wanted kept quiet, according to a transcript.
“Hey, bro. I had told you something a long time ago, remember?” Brian said.
The relative said he remembered the conversation and had kept it confidential. Brian Rodriguez, however, said two people had told him about details of the conversation.
“I’m not a rat, and I don’t tell on people,” the relative replied.
The call, although cryptic, convinced detectives the men had information about the crime. They interviewed the relative.
He told detectives that Brian Rodriguez had confided to him that Brian’s and Adrian’s father had allegedly planned and carried out the robbery and that Adrian was the inside man, according to an account later given by a homicide detective in a deposition.
The new information seemed to resolve details that had puzzled detectives. The security cameras in the store had been disabled that night, and a few minutes before the robbery, Rodriguez moved his car and parked it behind the manager’s, blocking his exit.
“The source/sources and evidence also gave Homicide investigators reason to suspect that other members of Adrian Rodriguez’ family could be involved and, therefore, were persons of interest in the investigation,” according to the later reprimand of Adrian Rodriguez.
In 2013, they brought the officer in for another interview.
“During the interview, Homicide detectives notified Officer Rodriguez that his father, Norberto Rodriguez, was potentially a person of interest in the case,” the reprimand noted. Police said Rodriguez refused to talk about the case and left the interview.
“Officer Rodriguez’ unwillingness to provide information via a witness interview shows his unwillingness to cooperate with investigators, and ensures that he remains a suspect in the case,” the reprimand said.
The department placed Rodriguez on paid leave and ordered him to stay at home and check in twice a day with supervisors.
When confronted by detectives, Brian Rodriguez denied that it was his voice on the jailhouse recording. He was charged with felony perjury and eventually struck a deal to defer the prosecution if he admitted to the recording. The father has not been charged in the robbery or homicide.
“This is crazy they are going after my family like that,” Rodriguez’s father, Norberto, said in a phone call with The Post. Asked if he was involved, he said, “This conversation is over.”
In April 2016, Llanes, the Miami police chief, fired Rodriguez.
The officer had attended three of his brother’s court hearings, unaware that internal affairs investigators were watching him. Llanes claimed that by going to the court hearings without permission and on city time, he was stealing pay, and by refusing to help with the investigation, he was violating his oath as an officer.
“The times that Adrian lied about his whereabouts was to meet with the people who we think are responsible for this crime,” Llanes alleged in an interview with The Post. “It wasn’t like he took a sick day to go to the beach.”
Rodriguez appealed and the union brought in Gibbons.
During the February hearing, Rodriguez declined to answer most questions on Fifth Amendment grounds. Gibbons said Rodriguez had nothing to do with the robbery and had been charged with no crime. The lawyer said the department wrongly fired the officer to counter the intense publicity the case had drawn. Gibbons said he could not be fired for refusing to cooperate.
“It can’t get any clearer than that they fired the man because he exercised his constitutional right,” Gibbons said in an interview.
In May, arbitrator Donald J. Spero, a former labor lawyer for Sears, ruled that the department must reinstate Rodriguez.
Spero declined to discuss the details of the case but said he stands by his decision. “You have someone’s life in your hands. You have to give each party what’s due,” he said.
The city is appealing the decision to a state circuit court and has not returned Rodriguez to patrol.
Rodriguez, through Gibbons, declined to comment. The Post could not reach his brother Brian Rodriguez for comment.
If the department loses, Llanes said, “I would relieve him of duty again and send him home, so the taxpayers could be looking at paying his salary for 20 years.”
The killing remains unsolved.
Kimbriell Kelly contributed to this report.
John Sullivan is a reporter on The Post’s Investigations team, an investigative reporter in residence at American University and a senior editor at the Investigative Reporting Workshop.