Coral Gables Commissioners sided with the city manager instead of the police chief on Tuesday when they supported a “separation agreement” that allows a police major who spied on a resident at a public meeting last year to retire from the department with her full pension in November rather than be fired outright.

And, in the process, they swept something under the rug that could have implicated the city manager’s office in more widespread spying on activist residents, selected employees and maybe even commissioners.

Because Maj. Theresa Molina –caught taking cellphone pictures of a resident’s text messages during a city commission meeting in September — wasn’t taking those pictures for herself. Let there be no mistake about that. Yet the investigation and Tuesday’s discussion did not go in the direction that it should have — which is up and into the city manager’s office.

That is why Molina has been, basically, protected from any real punishent this whole time, rewarded with the maximum pension benefits and, literally, paid — to keep her mouth shut. To keep the inquiry from moving up.

Read related story: Coral Gables cover up on police ‘spy’ protects managers

Molina has been suspended with pay since, earning her six figure salary the whole time she is, supposedly, sitting at home catching up on the Food Network shows (more than $90,000 on suspension). The decision by the commission Tuesday to support the city manager’s recommendation means Molina gets to stay on through November to reach the minimum threshhold necessary to apply the rule of 70 that allows her to retire with $500 more a month.

So, basically, rather than discipline her for spying on Maria Cruz (photographed left), who, by the way, was texting commissioners Vince Lago and Frank Quesada so she could be recognized and speak about the police shortages, City Manager Cathy Swanson-Rivenbark has rewarded Molina. Make no mistake about that. Molina was rewarded for her work, being a good spy — which is precisely what she was doing on September 28 last year and what should have been, what should still be, investigated.

It wasn’t a mistake. Molina didn’t suspect a Sunshine Law violation. It was a public meeting. Maria Cruz is not an elected official. She’s an active old lady resident with a legitimiate gripe about police shortages. Which is precisely why Molina was spying on her. Part of the investigation that did not get discussed Tuesday was the testimony from Maj. Raul Pedroso and Molina herself, which seem to contradict everything Swanson-Rivenbark said on the dais.

Pedroso, for example, indicates that there had been prior conversations between Molina, himself and Assistant City Manager Frank Fernandez, the director of public safety, about suspicious conversations and texting taking place in secret between some commissioners and some residents or employees of the police department. Apparently, from Pedroso’s testimony to the Internal Affairs investigator, these three sore losers have been talking about this “conspiracy” since Police Chief Ed Hudak was named interim chief instead of one of them.

“Maj. Molina, she was witness [to] what, what we have suspected,” Pedroso said in his sworn statement. “Which that these are the types of communications that are happening, that don’t appear to be the way that’s intended to in an open government.”

So, basically, they suspected that Maria Cruz was communicating with commissioners and Molina was getting proof for them.

Read related story: Gables Police major suspended for spying on resident

Ladra finds it curious that the mayor and certain commissioners had the time to bring up the sins of policemen past — which Swanson wisely listed on her report so she could change the narrative (it is a classic crisis management tactic and it worked somewhat) and justify her slap on Molina’s wrist — but they didn’t talk about the testimony that seems to indicate that what happened September 28 was not an isolated incident of rudeness but, rather, officially sanctioned government spying.

Molina didn’t take one photograph. She took six. Maybe as many as eight, because two were erased. Too blurry, she said in her sworn statement. She took the photographs from behind Maria Cruz’s shoulder, without her knowledge, in a sneaky and undercover fashion. She admits to going into investigative mode. She had to zoom in on them to see what was being said. She said she could read the messages were for Lago and she knew it was about the police shortages and about Maria Cruz wanting to speak but said she thought the resident was circumventing the rules. Maria Cruz was actually alerted by another witness in the commission chambers who thought the major was acting suspiciously. Molina, in her testimony, said she was just gathering evidence to report something she believed was a violation of the Sunshine Law.

But Molina didn’t then go and tell the police chief that a Sunshine Law had been violated. She didn’t take it to the city attorney who was right there. No, instead, Molina immediately showed the photos to Fernandez. Did he tell her to erase them because she had violated someone’s rights? No, he told her to show them to the city manager. And Swanson-Rivenbark says she told the major right away that what she had done was wrong.  “When she spoke to me as we went to the ribbon cutting for the NSA vehicles… I immediately said to her ‘It’s her right to text the commissioners.’”

And yet, Molina says in her own testimony that she didn’t realize she had done anything wrong until City Attorney Craig Leen told her once the commission meeting resumed after the NSA photo opp that residents could text commissioners any time they wanted. Wait, didn’t Cathy tell her just five minutes earlier or not? Probably not.

And Molina didn’t know it was wrong to photograph the communication of someone who is not under investigation? Are you kidding me? It’s unlikely the city would accept that as a legitimate excuse from a 23 veteran who once was considered for police chief — if it weren’t also convenient. Because this allows the city manager and her right hand man to move past this ugly little chapter without anyone having to know how involved they were in the spying.

Read related story: City uses legal muscle to gag Coral Gables activist

And also so they can keep it up. In recent days, Ladra has heard of other possible incidents in which Fernandez and his cronies have been reportedly reading other people’s emails and eavesdropping on conversations. He allegedly asked staff in Information Technology if they can find out who got blind copied on a critical email sent by Maria Cruz, who said Tuesday that she felt like she was in Castro’s Cuba again.

“Fidel Castro took over Cuba when I was 12 years old. Twelve. And I saw many injustices. Ms. Molina’s actions toward me took me back 60 years,” Cruz told commissioners when she begged them to terminate the major.

“Please, please send a clear message to anyone that in Coral Gables, no police offcer is above the law.”

The problem in this situation, however, is that those above the police officer are complicit.

Why would Coral Gables administrators go against their own police chief’s recommendation to terminate a major who spied on a resident during a commission meeting — taking a picture of the woman’s text messages and then arguing with her — and try to sweep the whole thing under the rug and let the officer retire instead?

The only reason is that they’re complicit.

That’s why Coral Gables Police Maj. Theresa Molina, who took a cellphone picture or pictures of a resident as she texted a commissioner last September, has been suspended with pay since, collecting more than $80,000 sitting at home doing nothing while the city has conducted, basically, a sham of an internal affairs investigation.

That’s why the city’s cover up, er, I mean investigation has been so, um, lackluster, failing to interview Commissioner Vince Lago, who was the elected that Maria Cruz was texting, other witnesses who were there or even City Manager Cathy Swanson-Rivenbark or Assistant City Manager Frank Fernandez, who Molina immediately reported her actions to and for whom we all suspect Molina was spying in the first place.

That’s why Swanson-Rivenbark’s recommendation to the city commissioners is for Molina to be allowed to retire –not today, not tomorrow, not retroactive to September, but in November so as to maximize her pension benefits. She doesn’t have to actually come in and work because she can use accrued sick and vacation time.

Are you kidding me?

So this is why Swanson-Rivenbark — who did not return several calls and emails while on vacation last week — has been dragging her feet in the first place, presenting a recommendation that is 88 pages, with attachments, on a Thursday before Memorial Day weekend. And only because Lago put a discussion item on the agenda about it. Otherwise, Ladra suspects we’d still be waiting for the city manager’s word. See? By waiting, they get closer to the November retirement date that allows Molina to use the rule of 70, which means she can get her pension right away — and at 75% of the average of her highest paid three years (which by the way, includes this year). But if she were fired today, she would have to wait until she was 62 and only collect 60 percent.

So, basically, Molina is rewarded for what she did. They might as well have given her a medal.

Read related story: Gables Police major suspended for spying on resident

Let’s quickly recap what she did for those who forgot or were too busy with the crazy presidential race to pay attention last year:

During a September commission meeting, Molina — a 23-year veteran who was acting chief for a short stint in 2014 — took cellphone photos of text messages that resident Maria Cruz, in the audience with concerns about police shortages, was sending to Commissioner Lago. She was asking him to recognize her and let her speak. After Cruz spoke about the 30-some police vacancies and her issue with the city’s fix — a program where civilian employees and security guards patrol North Gables in fancy golf carts as “eyes and ears” of real police officers — she told Molina to stop watching her.

“Stop texting the commissioners,” Molina actually had the audacity to retort.

Cruz felt like she was back in Castro’s Cuba. Lago was outraged that any resident would be discouraged from texting him. City Attorney Craig Leen even chimed in, telling Cruz she had every right to text anyone she wanted. For more details about what happened that day, go to the related story.

Molina was suspended with pay while IA investigated. Chief Ed Hudak recommended May 1 that she be fired. It took this long because the major who was suspended with pay and was supposed to be home during that time was too busy to be interviewed. Seriously. The final word is Swanson’s, according to the city charter, although really the final word is the city commission’s. Many people expected her to go against Hudak’s recommendation since the city manager’s office has done nothing but undermine the chief since Frank Fernandez was brought onboard (go ahead and send Ladra a cease and desist letter). Hudak did not return several calls from Ladra either.

Read related story: City uses legal muscle to gag Coral Gables activist

Molina’s attorneys have claimed varying defenses. Early on, even before she was interviewed and before the chief’s recommendation, they said he would retaliate against her for five internal affairs investigations she opened on him during the tenure of the three former chiefs. Later, they switched gears and said that this 23-year veteran who was once the top cop for a short while and also headed internal affairs for a bit didn’t know what she was doing was wrong.

Which brings us back to what she was she doing. Or, more specifically, for whom?

Because, c’mon, you don’t think Molina was taking a picture of the resident’s text messages for her own jollies, do you? For her photo gallery? What? She needed new wallpaper? No, of course not. She took the picture for her bosses. For some reason. It was a police-related item she wanted to talk about. She immediately went to show Fernandez, the director of public safety, who instructed her to show Swanson-Rivenbark the photo. Even her attorneys admit this in their first letter.

Is this why neither the city manager nor her right hand man were interviewed for the investigation? Is this why Frank Fernandez provided a written memo, not even a sworn statement? Since when do internal affairs investigators allow a witness to say how he will provide testimony or be interviewed? Since it’s the investigator’s boss, the man he reports to who is saying how he’ll provide testimony? 

Because Ladra believes the city were the ones spying — Molina is just a peon — and that’s why the investigation was so shabby and that’s why Swanson-Rivenbark doesn’t want to fire her. That’s why she’s helping her retire with the maximum pension benefits.

Read related story: Gables city attorney: There can only be one police chief

Lago isn’t going to let it go without some heated reprimands. He is not happy with the investigation or the city manager’s memo, which he said was “embarassing” because it relied on irrelevent justifications by comparing this incident to past sins that Swanson said were worse — trolling for prostitutes, beating your pregnant wife — and on Molina’s 23 years of service, which have not been spotless. 

“We need to break the cycle of the poor examples of the past, which are no excuse,” Lago said. “This behavior is wrong, it is unacceptable, and we need to set a positive example and ensure that the residents are represented. We are here to serve them and we will not compromise on the substance of any wrong, inappropriate behavior.”

More than one source has said that another outside law enforcement agency — the FBI? The SAO? — is looking into the matter. And that is good because this one is really laughable. There are still so many unanswered questions, the main one being what, or who, was Molina spying for? Without an independent investigation, how do we know that the city managers were not involved? And how do we know that this is the only time a city employee has spied on residents — or, dare I say, commissioners — for top administrators? That should have been what Swanson-Rivenbark did from the start if she truly wanted us to believe that it would be objective and transparent.

That would certainly satisfy Maria Cruz, the resident who was spied on who is outraged with this ending.

“This investigation is a farce,” Cruz, in a screenshot here from WPLG-Local 10, told Ladra Friday. “From the beginning I objected to Frank Fernandez having anything to do with the investigation, both he and Cathy. Shouldn’t part of that investigation be why did she [Molina] go to him? Shouldn’t part of the investigation be why did he tell her to go to Cathy Swanson? What did they tell her?

“Their fingerprints are all over this whole thing,” she added. 

Here’s a suggestion for Gables commissioners. Make a deal with Molina. Accept her retirement terms. But only if she spills the beans on what the others knew and when. 

Oh, and maybe make her return the $80,000 she’s gotten paid to be on vacation.

The city of Coral Gables wants to silence a North Gables activist who asks too many questions, so it sent him a threatening “cease and desist” letter from an attorney who used to be a county judge.

Oh, and it cost taxpayers $5,000.

Ariel Fernandez, a vocal North Gables resident who ran for office two years ago, got a letter from former Miami-Dade Judge Israel Reyes — who is outside counsel for the city an on behalf of Assistant City Manager Frank Fernandez — that wasn’t necessarily an official cease and desist letter, perse, but obviously had the same function and intent. And that is to shut him up and shut him down.

“This correspondence is intended as an intervention tool to deescalate the hostilities toward Director Fernandez, while at the same time ensuring that your absolut First Amendment Constitutional right to petition your government so as not to deprive you of any access to city officials,” the letter states.

Read related story: Don’t ask, don’t tell! Coral Gables policy is golden silence

“The city welcomes and encourages your participation in the governance of the city of Coral Gables, as it does to all its residents. However, as you are aware, the First Amendment does not protect potentially libelous statements when made with reckless disregard as to the falsity of the statements or with knowledge that said statements are false.

“It is the city’s sincerest desire that you refrain from this type of conduct in the future,” Reyes said in the letter offering to set up a meeting with the assistant city manager to discuss the issues in person.

Ariel Fernandez is adamant about getting the answers in writing. “I’ve been at this for a year and a half and some of the questios have been answered but he always says ‘Let’s sit down and talk.’ He refuses to put the rest of the answers on paper. I don’t want to talk. I want written answers.”

Answers he still has not gotten.

Because rather than answer them, City Attorney Craig Leen says City Manager Cathy Swanson-Rivenbark asked him to look into stopping the email barrage. Leen turned to Reyes, a respected attorney who has done a lot of work for the city as outside counsel. “I thought it was best to get someone independent,” Leen told Ladra, adding that the letter is not a violation of Fernandez’s first amendment rights.

“The constitution does not protect libelous speech,” Leen said, adding that “factually incorrect and damaging” remarks in emails the email, citing the words Reyes used “potentially libelous.”

Read related story: Coral Gables picks Cathy Swanson as top administrator

And therein is the keyword, ladies and gents: Potentially. Which means not really. Which means that this little $5,175 exercise in futility was, in fact, something other than a legitimate legal maneuver. Like maybe a third-world strongman tactic to gag and intimidate an active and vocal citizen who has the electeds’ ears.

What’s more, it could be interpreted as witness tampering, seeing as how Ariel Fernandez was there at City Hall and took a picture of Gables Police Maj. Theresa Molina taking a picture of a resident’s cellphone while she was texting (more on the progress of that investigation later). It would be easy for a logical mind to connect these threats with that case and hear the words “shake down” whispered in your head.

“I feel intimidated,” Ariel Fernandez said. “They want me to stop raising the issue.”

The issue is the shortage in police officers, which at last count was at 22 or 23 or something — the highest number of vacancies the department has ever had. Frank Fernandez, director of public safety and the defacto police chief, has hired security guards and championed closed caption television and his idea of police recruiting is putting a old-timey sign on U.S. 1 saying “Police Officers Wanted.” He was brought to Coral Gables from the city of Hollywood by Swanson-Rivenark soon after she came back to the City Beautiful as top administrator in 2014 and has been a controversial figure since the beginning. Ariel Fernandez is certainly not the only one “trash talking” him.

In fact, nothing in those emails seems that far-fetched. Not that Frank Fernandez is undermining Police Chief Ed Hudak — especially since he originally tried to make him co-chief with someone else until the city attorney stopped him because the charter won’t allow it. Not that he’s trash-talked Hudak and urged others to trash-talk him. Not that he’s spying on residents like in Castro’s Cuba — not when we still don’t know what exactly happened with that police major who took a photo of the residents phone at City Hall (more on that later).

Not even the assumption that the city managers are colluding to keep information from the public. Know why? Because it’s happened before. We’re still traumatized by the ghost of Pat Salerno, the former city manager who resigned abruptly only after he was caught lying to commissioners about safety on Ponce de Leon Boulevard. Last week, several commissioners were shocked to learn that a former city employee had stolen $85.000 from false alarm fees without anybody noticing. So maybe Ariel’s statments — the ones that aren’t just a matter of opinion — aren’t that false, after all?

Read related story: Gables city attorney: ‘There can only be one police chief’

“Everything in there can be corroborated,” Ariel told Ladra about his emails. Even the one about Frank Fernandez telling a citizen to trash-talk the chief. He said he can name that citizen “if push comes to shove” and can prove every other allgation that he has made.

Sure, Ariel Fernandez can be pesky pain in the ass. His demanding emails may seem overwhelming all at once, but here’s the rub: his first email was rather friendly, telling Frank Fernandez that he was taking advantage of his “open door” policy and invitation to ask questions. And the second one was after he got no response — three weeks later. He got increasingly upset as he got ignored in what amounts to a political runaround. Y se puso un poco fresco. Ladra would have growled a little, too.

But here’s the most  important part, he’s a resident. Ariel Fernandez is a taxpaying property owner. He is a voter. He has been the direct victim of crime in his neighborhood. He has every right and pre-requisite, if there were any, to ask questions of the city managers or any employee — and he deserves to have these very questions answered.

So do we.

Ariel Fernandez’s original 25 questions for Assistant City Manager Frank Fernandez:

1. How many vacancies do we currently have for uniformed Police officers?
2. Data-wise, what direct effect does each vacancy have on the number of committed crimes?
3. How many vacancies do we have for first responders in the Fire Department?
4. How many vacancies do we have for support personnel in the Police Department?
5. How many vacancies do we have for support personnel in the Fire Department?
6. To what factor or factors do you attribute these vacancies?
7. How many recruits do we have in the Police Academy?
8. When initiatives do you currently have in place in order to fill these vacancies?
9. By what date do you expect for all vacancies to be filled?
10. What steps will you take to increase interest and applicants for these vacancies?
11. In how many crimes have your Public Safety Aides intervened?
12. Are the Public Safety Aides properly trained to intervene in the event of a crime in progress?
13. Are the Public Safety Aides properly equipped to intervene in the event of a crime in progress?
14. What is your relationship with the representatives of the company providing CCTV for the City?
15. Do you/or have you ever had a personal relationship with any City vendor who is currently under contract for services to the Police or Fire Department? If so, who and what is the relationship?
16. The condition of the Public Safety building continues deteriorating. When we first met you told me this was your top priority. What is the status of the replacement of the Public Safety building?
17. Why was the company that was asked to prepare the RFP for the City also allowed to submit a bid? Isn’t this a conflict of interest?
18. We all know the immediate action taken by Chief Hudak following the incident at City Hall where Major Molina was spying on a resident. What actions have YOU taken to ensure the privacy of residents is not violated by Majors who directly answer to you and not Chief Hudak?
19. This incident has left a very bad impression of your ability to serve in your post. What assurances do you give residents who believe you are not fit to do your job?
20. How many private security guards are still patrolling our streets?
21. When can we expect actual certified Police officers to replace them?
22. How much (exactly) is this program costing the City?
23. Where is the funding coming from?
24. Who authorized for this funding to be used for this reason?
25. Due to the high amount, didn’t this requ.ire Commission approval?

It is important to note that the answers that did come, came from the city attorney’s office. The ones in bold are still unanswered.

But Ladra is working on it now.

Shhhhh. The city of Coral Gables wants you to shut up.

If you’re a pesky citizen who asks too many questions, like North Gables activist and onetime commission candidate Ariel Fernandez, you get a weak ‘cease and desist’ letter from a fancy outside attorney (more on that later). If you’re an employee of the City Beautiful who talks to activists like Fernandez or city commissioners, giving them unfiltered information about city services or, maybe, police shortages or, um, theft of alarm fees, you could get fired.

And forget meetings in the afternoons so that more residents who have to work during the day can go and give commissioners their two cents on land use or development issues or the police shortages. Three of five commissioners have quashed that idea.

Maybe it should be called the City Bashful.

Information is so bottled up in Coral Gables that, as the Miami Herald just reported, there were no tweets or Facebook updates on the police department’s accounts during the recent shooting at the Village of Merrick Park. A policy change last year routes all tweets and Facebook posts through the red tape morass of the city manager’s office for approval — which sort of goes against the grain of the immediacy of police twitter alerts.

It seems that City Manager Cathy Swanson-Rivenbark wants to control all the information getting out -bnd keep as much of it from getting out as possible. Even to commissioners, who were shocked to learn this month that a former employee had been arrested in March for stealing $85,000 from the city by diverting false alarm fee checks to her own bank account.

Swanson-Rivenbark also sent an email out earlier this month as “an important reminder to all department directors that each of you are to communicate to our office and to the city commission through your assigned assistant city manger with the exception of finance, internal audit and communications, which reports directly to me.

“The reporting encompasses all written and verbal communication,” she wrote, careful to say that they should, of course, provide information when asked. She doesn’t want to get accused of being a Pat Salerno (ooops, too late).

Read related story: Coral Gables picks Cathy Swanson as top administrator

“In the event that a city commissioner reaches out directly to you for information, please provide the information to them and inforn your assistant city manager so our office may be kept informed and ensure proper follow-through,” she wrote ominously. Define proper follow-through, Ladra says.

“This includes attendance at meetings involving a city commissioner,” the city manager continued.

So now department directors must also report on commissioners’ attenance at meetings? Like a chivato?

“The purpose of this established reporting structure is to ensure the highest level of efficiencies, coordination and timely implementation.” Swanson-Rivenbark wrote. But that seems like a stretch. The twitter policy certainly isn’t more efficient or timely. More likely, this ensures that commissioners are kept in the dark and the manager is the only one who really knows what is going on — including whatever any of the commissioners know or said.

And Ladra suspects that it is meant to have a chilling effect. When she says, “In the event that a city commissioner reaches out directly to you for information,” it sounds an awful lot like, “Yeah, right. What would they be doing going to you? We will suspect you went to them no matter what.”

Ladra wonders if the commissioners have noticed any sudden stopgap in information after the May 4 email where Swanson-Rivenbark also asks department directors to share the policy with staff and confirm receipt of the email “so I know each of you are aware of the appropriate protocol.”

So, it sounds like a gag order and smells like a gag order and walks and talks like a gag order, but the city manager calls it protocol.

Read related story: Gables City Attorney says ‘There can only be one police chief’

This email comes on the heels of a letter sent by an outside counsel to Ariel Fernandez after he sent a series of emails to Assistant City Manager Frank Fernandez (no relation) about the police shortages and public safety, copying Swanson-Rivenbark and other city employees and commissioners. The letter from former Miami-Dade Judge Israel Reyes tells Fernandez that his words are “potentially libelous” because he is making inaccurate assertions (more on that later). But most of the assertions that Fernandez made in his emails, even the ones cited in the Reyes letter — which is not a formal cease and desist but has the same threatening tone and intends to have the same chilling effect — was information provided to him, in most cases, by city employees. Some of it might have been inaccurate. But some of it was not (like the police chief being undermined by the city manager’s office). And there is no doubt in Ladra’s mind that this is the kind of thing Swanson-Rivenbark wants to nip in the bud. 

It’s also protocol for all city commission meetings to be held at 9 a.m. — and don’t expect that to change anytime soon to make them more accessible to more people. Commissioner Vince Lago asked the city clerk to poll his colleagues to see if they would be willing to begin meetings at 5 p.m. once a month, or every other meeting, to give more residents the opportunity to partipate in the democratic process through municipal government. But it got shot down by three of the voting members on the commission.

According to a May 15 memo from City Clerk Walter Foeman, two members of the commission opposed the 5 p.m. start time for the second meeting of the month. “Another member of the commission said she preferred meetings to start at  9 a.m.,” Foeman wrote, and we can assume that is Commissioner Pat Keon, the only she on the dais now. “Another commissioner said that both times worked for him; and the requesting party voted yes, to have the meetings begin at 5 p.m.”

Ladra’s sources say that newly elected Commissioner Mike Mena was the one who didn’t care one way or another and that Mayor Raul Valdes-Fauli and Commissioner Frank Quesada were against it. Keon said it would be too hard on staff, who had to report the next day at 8 a.m. But a lot of other small cities have night meetings and it would definitely increase the number of people who could participate.

Ahhh. There it is, ladies and gents. Ladra cannot help but think that the true intention of not having meetings at 5 p.m. is to thwart participation. And it’s a pattern.

Because if you live or work in Coral Gables, the city administration and three of the electeds don’t want to hear from you.

So, shhhhhhh.