Lawsuit against Hialeah mayor for denying investigation into 911 operation is dismissed

In a political and judicial setback for Hialeah Councilman Bryan Calvo, the Eleventh Judicial Circuit Court of Miami-Dade County has dismissed his lawsuit alleging that Mayor Esteban Bovo Jr. engaged in a systematic “abuse of power” in an effort to silence his criticisms of the city’s emergency services.

Calvo alleged in the lawsuit that Bovo exceeded his authority and interfered with the councilman’s investigation and inquiry into thousands of 911 calls that had gone unanswered, prohibiting him from adding topics to the agenda of City Council meetings if he didn’t get previous approval of the Mayor.

Also the councilman argued that the mayor implemented a policy prohibiting council members, including Calvo, from speaking to any department head or city employee without first going through Bovo, according to a memorandum sent from the mayor’s office on Sept. 1, 2022.

For Judge Reemberto Diaz, who was handling the case, Calvo’s lawsuit, the lawsuit did not have merit.

In his ruling on Monday, Diaz explained that he dismissed the complaint with prejudice. It cannot be modified for five reasons:

▪ No subject matter jurisdiction to intervene in municipality’s legislative process

Calvo asked the court to issue a ruling declaring the memoranda violate his rights as a councilmember, and to prevent and enjoin the memoranda from enforcement. According to the judge, to make such a ruling would require the court to interfere with the decision-making process of another branch of government. “Under the separation of powers doctrine, I have no jurisdiction to do so,” Diaz explained.

▪ No cause of action for declaratory relief sought by the plaintiff

The court determined that the allegations in the lawsuit show that Calvo has not been prevented from exercising the rights he has as a council member. “As such, Plaintiff cannot plead that he is in doubt as to the existence of his rights,” Diaz explained in his ruling.

▪ Complaint fails to join a necessary and indispensable party.

Calvo sued Mayor Bovo in his official capacity as mayor of the city, alleging that the memoranda violated the Municipal Charter and Code.

The city was not included in the lawsuit, but rather sought to determine whether the mayor’s actions were appropriate, and this was the main argument of Bovo’s lawyers in asking to dismiss the case.

“The Complaint incorrectly sues the Mayor and fails to name the City of Hialeah as a party to this lawsuit,” said Judge Diaz.

▪ The plaintiff lacks standing to maintain his suit in an official capacity

The ruling explains that the lawsuit sought declaratory relief, asking for clarity about the individual rights of the councilmembers in relation to those of Mayor Bovo. However, the judge determined that Calvo lacks authority to act on behalf of the entire City Council as he attempts to do so in this action.

▪ The court lacks jurisdiction to enjoin Hialeah’s legislative process.

The judge considers that Calvo’s request to interpret memoranda in Hialeah is outside the is outside the bounds of this Court’s jurisdiction because it seeks review of the internal deliberative process of Hialeah’s legislative branch, “which is prohibited by the separation of powers doctrine,” the judge explained.

What the parties involved in the Hialeah lawsuit say

The mayor issued an official statement saying that Calvo’s lawsuit was political theater seeking publicity in the media. “Calvo’s actions caused unnecessary panic among our residents.”

For the mayor, the fact that the courts dismissed the lawsuit “is a vindication that the priority of the employees of the Emergency Center, the majority of the members of the Council and my administration, is to protect and serve residents with integrity.”

During the Council Meeting on Jan. 23rd, Bovo said that Calvo litigates because he can’t legislate.

“You add a gross narrative, misjudge the facts, if you had met with department head you would have the same conclusion (...) The employees of 911 are doing an outstanding job, but now for your circus the residents of Hialeah has to pay,” Mayor said.

When Calvo replied to the mayor, Bovo walked away. The councilman asked the mayor if he didn’t have the courtesy to hear what he had to say, to which Bovo replied: “I’m done with you, come mierda.”

For Calvo, the dispute does not end with the judge’s ruling.

“This decision does not make the 911 problem disappear, in contrast to what Bovo says. The city has to address solutions,” Calvo explained to el Nuevo Herald.

According to the councilman, the lawsuit was one of his “strategies” to address the issue of 911, after el Nuevo Herald revealed that the Hialeah Emergency Department has a response capacity below the national standard.

José Smith, special magistrate of North Miami, said that the court recognized that Councilman Calvo has the right to submit a public records request subject to payment of reasonable fees and appropriate wording under privacy laws, but denies that his position gives him the privilege of not paying for such records.

One of Calvo’s justifications for suing Bovo is that the city was charging him $6,769 to obtain public records about the operation of the 911 Emergency Department.

Although Calvo does not rule out paying the money, he says he would do so “under protest.”

According to the Hialeah City Clerk, the Technology Department found 10,242 emails with the search terms requested by Calvo.

According to the City Clerk’s estimates, it would take approximately “one hundred and seventy (170) hours to review the messages for confidential or exempt information, and to write these records (...) in accordance with the law.”

Prior to the lawsuit, the City Clerk told el Nuevo Herald that in the last 10 years “there are no records” about any charge or billing made to a city councilor for requesting public records.

First Amendment implications?

One of Calvo’s allegations in the lawsuit was related to his “inability” to present issues on the legislative agenda without the approval of the mayor or the affirmative vote of four councilmembers.

Although the judge believes that even that aspect of the lawsuit should be dismissed, Smith disagrees.

“I think this rule is too restrictive and may have First Amendment implications,” Smith explained. “Four affirmative votes should not be necessary to include an issue on the agenda.”

This rule, according to the expert, “stifles” debates on public policies and is not the norm in municipal governance, although Hialeah is a city with a strong mayor, an atypical government system in Miami-Dade.

Although Calvo has not confirmed that he will appeal the ruling, Smith thinks that the councilman could appeal to a higher court to obtain a legal opinion on the presentation of issues on the agenda.

However, the expert warned that the possibility of success is very limited, especially in the way the judge says that the case has no merit.

Another alternative to this political framework, according to Smith, would be for the councilman to seek an opinion from the Miami-Dade Ethics Commission that would allow for assessing whether there is any ethical violation in Hialeah.