Fernandez drops employment lawsuit against Key West




Former Assistant City Manager David Fernandez has agreed to drop his lawsuit against the city for not honoring his 2014 employment contract, a contract that led to the firing of then-City Manager Bob Vitas.

A Monroe County Circuit Court Judge ruled against Fernandez on April 28, saying that the city was within its legal rights to cancel the five-year employment agreement with Fernandez. Fernandez then appealed the ruling to the Third District Court of Appeals.

However, because the city prevailed at the trial level, it could petition the court to order Fernandez to pay the city’s legal costs in the case. Rather than face that potential financial hit, Fernandez agreed to withdraw his appeal in return for the city waiving its claim to attorney fees and costs.

“Given the potential for protracted litigation, the uncertainty of the results and the likelihood for collection of any monetary judgment obtained, it is in the city’s best interest to decline to pursue fees and costs in exchange for Plaintiff’s dismissal of the appeal in this case,” according to the resolution Key West City Commissioners will vote on at the next commission meeting. The resolution was originally on the Sept. 6 agenda but that meeting was cancelled because of Hurricane Irma.

Fernandez had submitted his resignation in June 2014 after 28 years with the city, including stints as assistant city manager and utilities manager, to then-City Manager Vitas. Vitas then drew up a new independent contractor agreement for Fernandez naming him Utilities Director, where he would have managed multiple municipal projects at an annual salary of $113,000 plus benefits for five years. Fernandez would also have been eligible to begin receiving his pension payments on top of the contract deal.

But City Attorney Shawn Smith threw out Fernandez’ contract at a June 2014 special meeting of the City Commission, saying Vitas had not gotten legal department feedback on the contract as required by the city charter. He also had not passed it by commissioners for their input, although then-City Commissioner Teri Johnston said at the time that Vitas, not the city commission, had the authority to make all hiring and firing decisions for city staff.

Just minutes before Smith’s ruling on the Fernandez contract, commissioners had voted unanimously to sever all relations with Vitas, agreeing to pay him 18 months of severance in return for him leaving one year before his contract expired. However, voiding Fernandez’s contract didn’t even require a vote by the mayor and city commissioners, Smith told them at the special meeting.

“The law states if a contract is executed outside the authority of the individual signing it, it is void. There is no additional action that is necessary,” Smith said. “It is my opinion as your city attorney that the city manager acted outside his authority in executing [the Fernandez] agreement. That agreement violated a number of provisions of state law. It also violated your city charter.”

Fernandez’ lawsuit called for him to be reinstated as Utilities Director and the five-year contract to be honored. He hired local attorney John Marston and Illinois Attorney James Baker, a specialist in government employment law, to handle his case.

“The city breached its contract with Fernandez by failing to employ him as utilities director and fulfill the terms, conditions and obligations assumed by it under the terms of that agreement,” the lawsuit papers stated.

After Smith ruled Fernandez’ contract was signed illegally by Vitas and, as a result, not a legally binding document, Fernandez attempted to rescind his retirement resignation. However, city commissioners would not allow him to withdraw his resignation letter and return to work as assistant city manager.