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CITY OF MIAMI COMMISSION

File Number: 6342

APPEAL OF CITY OF MIAMI PLANNING,


ZONING & APPEALS BOARD JUNE 5, 2019
DECISION GRANTING EXCEPTION FOR
PRESCHOOL BY CENTNER ACADEMY,
PERPETUAL LOVE 4136, LLC AND
PERPETUAL LOVE 4128, LLC AT 4136
NORTH MIAMI AVE

MOTION TO DISQUALIFY GREENSPOON MARDER

I represent the Buena Vista Heights Neighborhood Association and its members Kirk Munguia,
Ulysee Kemp, Rosa Ramos, and Gena Veillard in connection with the foregoing appeal of the
zoning exception being sought by the Centner Academy at 4136 North Miami Ave.

I hereby respectfully request that Greenspoon Marder be disqualified from representing the
Centner Academy/Perpetual Love 4136, LLC & Perpetual Love 4128, LLC (collectively, the
“Centner Academy”) in connection with the appeal pending before the City of Miami
Commission.

Just as Mayor Francis Suarez is prohibited from representing clients before the City of Miami
Commission, well-established Florida law prohibits his law firm Greenspoon Marder from doing
the same.

The specific grounds and legal basis in support of this Motion are as follows:

Background

The Centner Academy is represented in its effort to obtain a zoning exception to operate a
preschool from the City of Miami by William Riley, Esq., a partner at the law firm Greenspoon
Marder.

Mayor Francis Suarez is also affiliated with Greenspoon Marder as an “of counsel” attorney.
Francis Suarez and Bill Riley worked together at the law firm Grey Robinson together before
they both moved to the Greenspoon Marder firm in 2018.

The City of Miami Charter sets forth the Mayor’s broad governing powers:

Sec. 4(g) Powers and duties of mayor. The mayor shall serve as the chief executive
officer and head of the city government with the following specific powers and duties:

(1) The mayor shall be the presiding officer of the city commission1

(5) The mayor shall, within ten days of final adoption by the city commission, have
veto authority over any legislative, quasi-judicial, zoning, master plan or land use
decision of the city commission…. (emphasis added).

In fact, Mayor Suarez refers to himself as, and requests Commissioners call him, “Chairman” at
meetings of the City Commission. 2

1
Sec. 2-34 of the City of Miami Code provides:

Presiding officer; vacancy.

(a) In accordance with provisions of Section 4(g)(1) of the City Charter, the mayor shall be the presiding
officer of the city commission unless the mayor designates another member of the city commission to serve
as presiding officer.

(b) The mayor, as presiding officer, shall not move, second, debate, or vote on any matter that comes before
the city commission. If the presiding officer is a member of the city commission, the presiding officer,
upon relinquishing the chair, may move, second, debate, and vote on any matter that comes before the city
commission, subject only to such limitations as are imposed on all members of the city commission.
2
See for example the Minutes of Mar 14, 2019 Commission Meeting at page 90 available at
http://miamifl.iqm2.com/Citizens/FileOpen.aspx?Type=12&ID=1961&Inline=True

Commissioner Carollo: Now having said that, the Chairman -- you wanted me to call you "Chairman," right?
Mayor Suarez: Or "Mayor"; whatever you prefer.
Commissioner Carollo: Well, no. You said “Chairman.”
Mayor Suarez: Or both. If you want, you can call me both. That’s fine too.
Commissioner Carollo: Okay, you kept saying “Chairman."
Mayor Suarez: (UNINTELLIGIBLE) once.
Commissioner Carollo: You can’t -- no, you really can't have both; it's one or the other, so you –
Mayor Suarez: Actually, if you read the Charter, I do have both.

2
Neighbors of the Centner Academy, as well as the neighborhood associations for the Buena
Vista neighborhood where the Centner Academy is attempting to obtain a zoning exception to
operate a preschool, have appealed the decision of the City of Miami Planning, Zoning &
Appeals Board (“PZAB”) to the City Commission, arguing that the decision departs from
essential requirements of the Miami21 zoning code.

As a result, William Riley, Esq. will be appearing in front of the City Commission on behalf of
the Centner Academy, a Greenspoon Marder client, to seek a favorable vote from the City
Commission, which City Commission a member of his firm, Mayor Suarez, serves as Chairman.

Furthermore, as set forth above, the City Charter empowers the Mayor with veto power over any
land use decision of the City Commission.

As such, even if the City Commission votes against the interests of Greenspoon Marder’s client
Centner Academy at the Commission Meeting, the Mayor has the power to veto such decision,
which would result in a situation where the Mayor would be lobbied by another member of his
own law firm to exercise his veto power.

Applicable Law

The circumstances at issue reflect not just an appearance of impropriety, 3 but a situation
expressly prohibited under Florida law.

The undersigned has known Mayor Suarez personally and professionally for over ten years. I
have had the opportunity to work closely with Mayor Suarez and that has resulted in a deep
respect for Mayor Suarez both personally and professionally.

As such, the issue raised by this Motion is not directed personally at either Mayor Suarez or his
law partner Mr. Riley.

3
The scenario outlined herein would appear to also implicate Section 4-1.7 of the Florida Bar Rules of Professional
Conduct governing conflicts of interest and, regardless of the actual conflicts outlined herein, the situation creates an
undeniable appearance of impropriety. In State Farm Mutual Automobile Insurance Co. v. K.A.W., 575 So. 2d 630,
633 (Fla. 1991), the Supreme Court of Florida held that “While these facts neither indicate nor imply any departure
from professional conduct or breach of any ethical canon, we cannot escape the conclusion that this is a situation rife
with the possibility of discredit to the bar and the administration of justice.... Though we do not dispute [counsel’s]
good faith or the good faith of the firm representing plaintiff, both the possibility of conflict of interest and the
appearance of it are too strong to ignore. Id. at 634. (emphasis added).

3
But the bottom line is that Mayor Suarez, no matter how honorable he may be, would not be
allowed under Florida law to represent the Centner Academy in front of the City Commission on
this matter.

And Mr. Riley, a partner at the same Greenspoon Marder firm that Mayor Suarez works at, is
likewise disqualified from doing so under clearly established Florida law.

Florida Statutes 112.313(7)(a) provides:

Nor shall an officer or employee of an agency have or hold any employment or


contractual relationship that will create a continuing or frequently recurring conflict
between his or her private interests and the performance of his or her public duties or that
would impede the full and faithful discharge of his or her public duties. (emphasis
added).

The Florida Commission on Ethics, the state’s ethics watchdog agency, has repeatedly and
consistently interpreted the foregoing as barring appearances by anyone affiliated with a law firm
before any public body on which anyone else affiliated with that law firm is involved.

In CEO 88-40 (June 9, 1988),4 the Florida Commission on Ethics addressed a similar factual
scenario and found that:

A prohibited conflict of interest would be created under Section 112.313(7),


Florida Statutes, were a city council member or a partner of his law firm to
represent a client before the city council regarding zoning matters or requests for
variances.

The case involved an attorney who was considering running for election as a member of a city
council. The question presented was:

Would a prohibited conflict of interest be created were you to serve on a city


council and were you or a partner in your law firm to represent a client before the
city council in a zoning matter or a request for a variance?

Your question is answered in the affirmative.

We find that a prohibited conflict of interest would be created were you or another
partner of your law firm to represent a client before the city council in a zoning matter or
a request for a variance, if you serve as a member of the city council.

4
http://www.ethics.state.fl.us/Documents/Opinions/88/CEO%2088-040.htm

4
Yet another example of the clear guidance provided by the Florida Commission on Ethics is
CEO 07-13 (April 25, 2007),5 which held that a prohibited conflict of interest would exist were a
member of a City Commissioner's law firm to represent clients before the City Commission, and
held that “the conflict would exist whether the Commissioner was an employee of the firm, or
was "of counsel" to the firm.”

We have said on more than one occasion that "The representation of a client before a
board of which one is a member interferes with the full and faithful discharge of one's
public duties, in violation of s. 112.313(7)(a) . . . ." CEO 77-126; CEO 88-40. Even a
single instance of such conduct impedes the performance of the public officer's duty, and
thus violates the statute. CEO 78-86, CEO 89-47. Thus it is clear that you would be
prohibited from representing clients before the City Commission.

Further, in CEO 78-86, we said "We do not feel that this conflict of interest could be
mitigated or avoided by having another member or an employee of the public officer's
professional firm represent the client before his board. The same conflict of interest and
appearance of conflict of interest would be involved in this type of representation, as well
as the same direct private gain to the public officer."

The Florida Commission on Ethics found that “such a conflict would exist where the official
serves in an "of counsel" capacity to his firm.”6

Accordingly, we find that a prohibited conflict of interest would exist were you or any
member of your firm to appear before the City Commission, whether you are employed
as a salaried associate or serve in an "of counsel" capacity to the firm.

These Florida Commission on Ethics opinions make clear that Greenspoon Marder is prohibited
from representing the Centner Academy in front of the City Commission.

5
http://www.ethics.state.fl.us/Documents/Opinions/07/CEO%2007-013.htm
6
See also CEO 96-1 (January 29, 1996) addressing another similar factual scenario and found:

A prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes, when the
law firm with which a Jacksonville Electric Authority (JEA) Board member has a "special
counsel" relationship appears before the Board on behalf of bond underwriters on various JEA
bond issues or represents other clients before the Board. The appearances of the law firm before
the Board and the Board member's close, regular, and continuing relationship to the law firm,
which exists as a result of his "special counsel" relationship to the firm, together with his duty of
loyalty to all of the firm's clients, creates an impediment to the full and faithful discharge of his
public duties. http://www.ethics.state.fl.us/Documents/Opinions/96/CEO%2096-001.htm

5
Greenspoon Marder recently received guidance on this very issue

In addition to the foregoing ethics opinions, it is interesting to note that Mayor Suarez and Mr.
Riley’s law firm Greenspoon Marder was a part of a very similar situation in 2017 that resulted
in the widely publicized resignation of Steve Geller, Esq. who served as Government Affairs
Director at Greenspoon Marder.7

In that case, Mr. Geller resigned from Greenspoon Marder after the Florida Commission on
Ethics advised him that because he had been elected to the Broward County Commission, no
member of Greenspoon Marder could appear before that Commission on behalf of a firm client.

As set forth in an article on Mr. Geller’s resignation,8 the Commission on Ethics explained the
intent of the statute:

The interpretation by the state’s ethics watchdog agency is to bar appearances by anyone
affiliated with a professional firm before any public body, extending to anyone else
affiliated with that firm.

“It’s concerned with what might happen — a temptation to dishonor,” agency


spokeswoman Kerrie Stillman said. She pointed to some commission advisory opinions,
including CEO 11-06.9

Recusal wouldn’t cure the conflict, she said — note that the statute seeks “the full and
faithful discharge” of the official’s “public duties.”

Conclusion

As set forth above, the Florida Commission on Ethics has provided clear, unequivocal, and
repeated guidance that applicable law prohibits Greenspoon Marder from representing the
Centner Academy in front of the City Commission.

7
https://www.gellerlawfirm.com/practice-areas/tallahassee-lobbying-and-administrative-law/
8
https://floridapolitics.com/archives/229697-geller-ethics

9
In CEO 11-06, a Landscape Architect appointed to the Planning and Zoning Board (PZB) of Vero Beach requested
an opinion regarding whether other members of his architect and planning firm could appear before the PZB he
served on. The Florida Commission on Ethics concluded that such a scenario would result in an ethics violation.
www.ethics.state.fl.us/Documents/Opinions/11/CEO%2011-006.htm

6
This conclusion comports with the strong policy reasons supporting disqualification of
Greenspoon Marder on this matter in order to promote public confidence in the integrity and
impartiality of the City Commission.

Having the Mayor’s law firm representing the Centner Academy in front of the Commission
when the Mayor is the Chairman of such Commission, and over which the Mayor ultimately has
veto power, undermines that confidence because the Centner Academy is afforded an unfair
advantage, thus disrupting the fair administration of justice in this action and obliterating any
semblance of a level playing field.

Returning these proceedings to a level playing field requires that Greenspoon Marder be
disqualified.

Request for Relief

The undersigned respectfully requests that Greenspoon Marder be disqualified from appearing
before the City Commission on this matter for the reasons set forth above.

Respectfully submitted,

_______/djw/___________
David J. Winker, Esq., B.C.S
Fla. Bar. No. 73148
David J. Winker, PA
2222 SW 17th St
Miami, Fl 33145
305-801-8700
dwinker@dwrlc.com

7
CERTIFICATE OF SERVICE

I certify that on September 3, 2019, an electronic copy of this document was sent to:

William Riley, Esq.


Mayor Francis Suarez
City Attorney Victoria Mendez
Deputy City Attorney Barnaby L. Min
Clerk Todd Hannon
Chief of Hearing Boards Olga Zamora
Commissioner Ken Russell
Commissioner Manolo Reyes
Commissioner Joe Carollo
Commissioner Willy Gort
Commissioner Keon Hardemon