City Attorney Jose Smith (L) whispering with Commissioner Exposito

Stonewalled by Governor Scott and State Attorney Katherine Rundle
24 March 2014 By David Arthur Walters MIAMI MIRROR MIAMI BEACH—City attorneys seem to run the legislative commission of the City of Miami Beach yet a great deal of their interactions with commissioners at public meetings never sees the light of day. And that is true elsewhere in the Sunshine State despite its Government in the Sunshine Law. The public can hear everything an attorney says when he takes the public podium and offers his formal advice on a subject. Nonetheless, time and time again we see city attorneys for the City of Miami Beach scampering up on the dais to whisper in the ears of commissioners or to receive guidance from the chief city attorney who sits on the dais and who whispers in the ear

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of the commissioner sitting next to him or gets up and stands aside to converse with other commissioners in the wings. If the public is entitled to hear the formal testimony of the city attorney office, why may they not hear the informal advice given during public meetings? We have reason to abhor secrecy in the conduct of public business, for that is where the wire-pulling contrary to the public interest most likely occurs. As Patrick Henry so famously said, “The liberties of the people never were nor ever will be secure when the transactions of their rules may be concealed from them. ” Of course city attorneys will claim they are not running the show at all, that they are merely advising commissioners extemporaneously, many of whom are lawyers themselves, on the details of how to conduct the public business legally as unanticipated questions arise during the course of meetings, and whispering answers is necessary so as not to disrupt the meetings. Nonetheless, their advice, whatever it is, has a considerable impact on legislative outcomes. Wherefore the public rightfully believes it has a right to hear everything city attorneys are saying at public meetings. If something is important enough to be said, it should be said out loud, for secrecy precludes accountability of officials and alienates the governed from their government. Since that aspect of Sunshine Law was being violated as a matter of habit by the City of Miami Beach, not to mention by governmental entities throughout the rest of the county and the state, I was moved to ask the Miami-Dade County Commissioner on Ethics and Public Trust for its opinion on the matter. Now it is the local State Attorney’s office and not the Ethics Commission that prosecutes violations of Sunshine Law. However, staff for the Ethics Commission promises to consider whether there is probable cause or at least reasonable suspicion to believe a violation has occurred, and, if so, to refer it to the State Attorney. Staff members, some of them prosecutors retired from the State Attorney’s office, professedly have better access to the State Attorney than ordinary private citizens whose concerns on such matters may well be ignored. Of course, the State Attorney’s office will jump at the behest of a VIP entitled to press coverage, such as was the case when a Miami Beach commissioner complained about backhanded whisperings, an event so heralded by the Miami Herald that it became a tempest in a teapot. Reformist Commissioner Ed Tobin was believed to be the tattle-tale. So, by way of example, I brought to the attention of Victoria Frigo, Senior Counsel for the Ethics Commission, the whisperings between City Attorney Jose Smith and Commissioner Jorge Exposito on the dais during a public hearing held on September 11, 2013, on the possible award of a contract for the management of the city’s tennis centers. That hearing made a travesty of the spirit of the state’s procurement law, which provides for a fair and reasonable process for
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the selection of contractors who want to do business with a government entity. The majority of the commissioners arbitrarily, capriciously and unreasonably circumvented that law to deny due process to the high and best bidder in favor of the low and worst bidder, the incumbent in league with the incumbent political machine. I did not make a formal complaint because the conduct I begged askance of is widespread. What I desired was an informal opinion by counsel expert in ethics. Little did I know, until I saw a video of Ethics Commission meetings, that the Ethics Commission routinely violates the Sunshine Law, with the Ethics Commission commissioners themselves holding folders over faces, and hands over microphones, to secretly discuss business during public meetings. I had already taken Ethics Commission staff to task on several other matters pursuant to Woodrow Wilson’s advice that, “The only truly self-governing people is that people which discusses and interrogates its administration.” My discussions of the Ethics Commission, its director and investigators, had not won any friends among them. I became generally stonewalled in regards to my interrogations, yet I still hoped for an opinion on my current question since it was obviously of great public importance. Frigo responded tersely, that only conversations between commissioners at public meetings are subject to the Sunshine Law. I then asked her to reconsider her position in the light of a common sense analysis of the statute itself, statements made by the Florida Attorney General in her Manual on the subject, and a leading case decision by the Florida Supreme Court that meetings between commissioners or board members and their government attorneys are subject to the law. In fact, a plain reading the Florida’s Sunshine Law and its interpretation by Florida’s Supreme Court and Attorney General indicates that city attorneys at city commission meetings are indeed subject to the Sunshine Law, therefore their transactions with commissioners should be seen and heard by the public. “Thus far,” I wrote to Frigo on October 23, 2013, “you are the only expert who has denied that the conversation between the commissioner and city attorney was subject to the Sunshine Law. Since I pointed out your probable error, and since you have not offered anything to support your position, preferring to remain silent, I suppose you agree with my opinion: “Qui tacet consentire videtur.” Please understand that I have no axe to grind with the commissioner or the city attorney, both of whom probably believed their conversation was proper even if it were a violation. My interest is in due process under the law for everyone. Of course everyone should know what that law is. The particulars in this matter indicate that there is some confusion in respect to the applicability of the Sunshine Law to certain persons. The Commission on Ethics advertises that it refers matters outside of its limited jurisdiction to the State Attorney.
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Therefore I ask that you send the file along to the State Attorney’s office for her opinion on the matter.” Frigo replied laconically, as usual, on the same day: “Per your request, your question has been forwarded to the State Attorney General’s office.” A local State Attorney is not the Attorney General of the State of Florida. I supposed she meant our local State Attorney, Katherine Rundle, from whom I have heard nary a word. Commissioner Exposito, who had gotten wind of my inquiries about his whisperings with Jose Smith from the president of the local tennis association, Rebecca Boyce, grew anxious and consulted with Jose Smith. The city attorney responded with his legal opinion agreeing with that of Frigo, and cited several sources that were off point or contrary to his position. He concluded with insulting remarks. I was pleased by his publication of the insults. As Sissela Bok has said so well, “Secrecy allows people to maintain facades and conceal traits such as callousness or vindictiveness—traits which can, in the absence of criticism of challenge from without, prove debilitating.” Rebecca Boyce received a copy of Smith’s legal opinion: “Thank you, Mr. Smith for your response, although I find the attack on Mr. Walters, a concerned person, to be unprofessional and quite disturbing. I am a simple resident without legal training. I am concerned with the processes and standards upheld by our government and would like to understand better the events that led to Mr. Exposito's motion in the 9/11/13 commission meeting. In this context, please clarify the content of the whispering, and also, the actual 'ambiguities' that the tennis RFP contains. Respectfully, Rebecca Boyce.” It must be said that Smith’s skin had been worn quite thin by the scandal over the arrests of several city employees that resulted in the forced retirement of his main ‘client’ at the city, City Manager Jorge Gonzalez. The so-called reformers were about to succeed in stacking the commission against the old guard he was allied with. Nearing retirement himself after decades of public service, his legacy was at stake, wherefore he was naturally in a defensive mode. I was perceived as an ‘enemy of the state.’ In fact, I had made much of his caustic remarks in the past, deliberately grating on his nerves, casting him as the devil running the city machine. Forsooth, he was not running the show. He was simply advising his many-headed client on how to do so legally or at least with appearance of propriety, which became exceedingly difficult to do as Rome burned to the violin concerto of the so-called reformers. I sensed that Smith’s disparagement signaled his suspicion that my lay opinion on the matter might be considered weightier than his legal opinion. Attorneys are not reluctant to impeach witnesses, committing the fallacy of argumentum ad hominem to avoid the facts if they can get away with breaking the rules. As for the opinion Smith was wont to agree with, that of the
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senior counsel for the Ethics Commission hiding attorneys from the Sunshine Law, it concurred with the natural prejudice of attorneys that their discussions with clients are privileged. However, I was convinced that attorney-client privilege was inapplicable to the transactions of public attorneys with governmental entities at public hearings. In sum, I was not after Smith’s hide when I made my inquiry about his conduct in the light of the Sunshine Law. I even liked him for giving me a hard time, for an enemy can be your best friend if you want to sharpen your skills. His conduct as well as Comm issioner Exposito’s was merely an example of a widespread abuse that would come to light if only people were made aware of it. That is why I did not want to file a complaint against Smith or non-attorney Exposito. I did not want a prosecution against anyone: I wanted a legal opinion that would not be binding yet would put attorneys on notice that the traditional game of whispering in the ears of kings was improper at public hearings. After all, secrecy is a confession of weakness and guilt: history proves that secret deliberations foster incompetence and brutish behavior. The argument for protecting the so-called deliberative process is hocus-pocus. The Attorney General of the State of Florida may provide opinions such as the one I wanted on Sunshine Law. But state law prohibits the Attorney General from providing advice to private persons. However, the Attorney General has published a manual on the subject running into several hundred pages, one page indicating that government attorneys are not exempted by attorney-client privilege from the Sunshine Law at board member meetings with the attorneys for discussion of litigation, from which it may be inferred that discussions between attorneys and board members at public hearings must be publicized. I believed that the Attorney General should affirm that inference as correct, providing an opinion on entirely on point. Governors of the State of Florida are charged with upholding the laws including the Sunshine Law. Governors may ask Attorneys General for legal opinions, and they may be given by law. Wherefore I appealed to Governor Rick Scott, who is himself an attorney, to ask Attorney General Pamela Bondi for her opinion on my question. Governor Scott’s office responded on several occasions. The governor said he could not intervene in court decisions. That was not what was asked of him. He said he does not administer local governments, and does not provide legal opinions. “It is notable that Attorney General Pam Bondi is a statewide elected official who has administrative authority over the Florida Department of Legal Affairs. The Department is not an executive agency under the administration of the Governor and the Attorney General's Office does not administer the offices of locally elected State Attorneys.” This is even more notable within the context of my question: Section 16.08 of the Florida Statutes states: “Superintendence and direction of State Attorneys.—The Attorney General
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shall exercise a general superintendence and direction over the several State Attorneys of the several circuits as to the manner of discharging their respective duties, and whenever requested by the State Attorneys, shall give them her or his opinion upon any question of law. And one of the duties under Section 16.01 is as follows: “Notwithstanding any other provision of law, shall, on the written requisition of the Governor, a member of the Cabinet, the head of a department in the executive branch of state government, the Speaker of the House of Representatives, the President of the Senate, the Minority Leader of the House of Representatives, or the Minority Leader of the Senate, and may, upon the written requisition of a member of the Legislature, other state officer, or officer of a county, municipality, other unit of local government, or political subdivision, give an official opinion and legal advice in writing on any question of law relating to the official duties of the requesting officer. ” Governor Scott did not ask the Attorney General for her opinion, as I had requested. Instead, he referred me back to the very local officials who had not responded appropriately to the question. He did not assist me with that referral by providing a letter of reference to the MiamiDade County Commission on Ethics or to the local State Attorney, who may also ask the Attorney General for legal opinions. Instead, I was advised to hire an attorney to resolve the issue through the court system. The attorneys had circling their wagons around secrecy. They did not want an explicit opinion on point. In other words, I was stonewalled by the governor on a question of great public importance. I pressed Attorney General Pam Bondi for any opinion that might have been already made on the subject. Assistant Lagran Saunders responded for her on October 29, 2013, referring to Attorney General Opinion 71-159, dated June 17, 1971, issued by Assistant Attorney General Rebecca Bowles Hawkins in response to a question put by city attorney for Hialeah: “ May a meeting of a public body, to which the public and press is invited, be held in a public dining room?” The meeting in question was attended by the press, members of the public, city council members, the city engineer, and the city attorney, among others. Although no decisive action was taken, discussions appertained to foreseeable action by the council. “Yes,” was the answer to the question put, although holding meetings in dining rooms is inadvisable because people may not want to pay for dinner, and may be reluctant to speak in that setting. Furthermore, “Your letter does not state what arrangements were made to make sure that the proceedings were audible to member of the public and press in attendance, and I cannot help but observe that discussions among city council members and staff members are audible only to a select few who are seated at the table with them might not satisfy the ‘openness’ requirement of the Sunshine Law. “
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“Might not satisfy” was not good enough for me, although it was encouraging and dovetailed with the Sun of the Sunshine Law. I desired an explicit answer to my question. “Ultimately,” said Saunders, “concerns with violations of the Government in the Sunshine Law should be addressed to the State Attorney for the jurisdiction in which the public meeting at which an alleged transgression occurred.” All right, then, I responded, I would address local State Attorney Katherine Rundle on the subject, and ask for her to take action. That would give her cause to form an opinion or to ask the Attorney General for her formal opinion. Would Saunders help me expedite the matter with her? No, he said, his office could not interfere in any way. Katherine Rundle did not respond to my question or acknowledge it. That is a stone wall if ever I saw one. I had been stonewalled by both Governor Scott and State Attorney Rundle on a question of great public importance, and nobody of importance really cared because I am just another steer in the herd without the benefit of legal aid. Perhaps before he retires with honors, Jose Smith will make a formal request for an Attorney General Opinion. ##

Lighting fixture inside South Beach Post Office

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