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From: Michael P. Murawski, Advocate Re: C12-07 (Crespo v. City of Miami officials et al.)
Date: March 27, 2012
Recommendation: There is No Probable Cause1 to sustain a violation of Section 2-613 of the City of Miami Code. Similarly, there is No Probable Cause to sustain a violation of Section 2-11.1(e) of the Miami-Dade County Conflict of Interest and Code of Ethics. Although, technically there may have been instances where Section 2-11.1(e) was violated, the City’s interpretation - that tickets received pursuant to contractual agreement are excluded from reporting requirements- precludes a good faith prosecution of individuals operating under this advice. For the reasons set forth below, the instant Complaint should be dismissed as to all Respondents with a General Letter of Instruction issued to the City of Miami. Background and Investigation: Complainant, Al Crespo (Crespo), filed the instant complaint naming as Respondents, “[a]ll elected and appointed officials named in [the] complaint.” Subsequently, it was determined that Crespo meant to limit the named Respondents to the Mayor, City Commissioners, City Manager, City Attorney and City Clerk.
Probable Cause exists where there are reasonably trustworthy facts and circumstances for the Ethics Commission to conclude that Respondent(s) should be charged with violating the Code of the City of Miami and/or the MiamiDade County Conflict of Interest and Code.
Alleged Section 2-613 violation: In his complaint, Crespo alleges, among other things, a violation of Section 2-613 of the City of Miami Code. That Code section states, in pertinent part, that: “Every officer, official or employee of the City, including every member of any board, commission or agency of the City, is expressly prohibited from accepting directly or indirectly, from any person, company, firm or corporation to which any purchase order or contract is or might be awarded, any rebate, gift, money or anything of value whatsoever except where given for the use and benefit of the city.” (emphasis added) It should be noted that pursuant to Section 2-613, the prohibition on accepting gifts extends to “anything of value” regardless of how low or high the value is; it is an outright prohibition on accepting gifts from anyone to which a purchase order or contract is awarded. City of Miami officials are, additionally, bound by the County gift ordinance which requires the reporting of gifts whose value is in excess of $1002. The City of Miami contracts with a company called Global Spectrum (Global) who operates the Knight Center, a City owned facility. Pursuant to the contract terms, Global provides a certain amount of tickets to events to the City for the City’s use. Many of the tickets provided by Global are distributed to the elected officials and numerous City employees. Similarly, the City and the Bayfront Park Trust have a contractual arrangement for the provision of tickets to various events at the Bayfront Park Amphitheater. It is evident that many of these tickets find their way into the hands of government officials and employees.
Sec. 2-11.1(e) (4) of the Miami-Dade County Conflict of Interest and Code of Ethics Ordinance.
The Mayor’s Ball –ticket allegations: Complainant also alleges, and the evidence supports, that Norman Braman (Braman) purchased tables for the Mayor’s Ball 3 and subsequently, some City officials and employees were given seats at those tables. The acceptance of tickets to the Mayor’s Ball by government officials and employees which were paid for by Braman are reportable gifts, if their value exceeded one-hundred dollars ($100). It appears, from the evidence provided by complainant, that each individual ticket was valued at $100, thus, the acceptance of one (1) individual ticket would not require disclosure as the value was not “in excess of $100”. While the evidence supplied by complaint suggests that the City Manager received a seat at the table for his wife as well as for himself, the City Manager provided evidence that he in fact paid for his own tickets. It also appears that at least one City employee, received a seat at the table for himself and his wife. Generally, spouses of government officials and/or employees are not required to report gifts that they receive; only the official or employee is obligated to file gift disclosures. Other relevant ordinance: Section 2-11(e) (1) of the Miami-Dade County Conflict of Interest and Code of Ethics ordinance, entitled Gifts states, in pertinent part: “The term “gift” shall refer to the transfer of anything of economic value, whether in the form of money, service, loan, travel, entertainment, hospitality, item or promise or in any other form, without adequate and lawful consideration…”
Section 2-11(e) (4) of the Code states, in pertinent part: “Disclosure. Any person included in the term defined in Subsection (b) (1) through (6) shall disclose as provided herein any gift, or series of gifts from any one person or
The Mayor’s Ball is a charitable event that raised approximately $59,000 to benefit the Police Athletic League children’s boxing program.
entity, having a value in excess of one hundred ($100.00). Said disclosure shall be made by filing a copy of the disclosure form required by Chapter 112, Florida Statutes, for “local officers” with the Clerk of the Board of County Commissioners simultaneously with the filing of the form with the Secretary of State.”
Analysis and Conclusion: There is no violation of Section 2-613. That ordinance specifically provides for exclusion from the prohibition on accepting gifts from companies doing business with the City, if the items are “given for use and benefit of the City.” In other words, there is a “public use” exception. The provision of tickets in these circumstances is specifically bargained for and negotiated; the “acceptance” of these tickets by the City, as an entity, does not violate Section 2-613 when the tickets are given for the use and benefit of the City... The problem arises, as it seems to in other municipalities, when it comes to defining what a proper “public purpose” is for the tickets to be used. This Commission has just recently adopted a set of suggested guidelines regarding this issue. Further guidance can be found in opinions issued by the Florida State Commission on Ethics (FSEC); specifically, CEO 91-46, 9233, 01-19 and 05-5. Those opinions express that mere passive attendance at an event for which an official has received a ticket through a “public benefits” clause does not automatically transform the event into a “public purpose.” In short, if an elected official attends an event for which he/she received a ticket through a “public benefit” contract, that does not automatically mean that their attendance at the event is “for a public purpose” or for “public business” or that they are using the ticket for the benefit of the City. Indeed, officials should not be receiving tickets through “public benefit” clauses which they then utilize for their own, personal enjoyment. “Public benefit” tickets are specifically not considered a “perk of office” to be used to subsidize and supplement the private activities of government officials. Going to an event with
a “public benefit” ticket for no other reason than for private, personal entertainment is not a public purpose. Under the new guidelines we have adopted, it is questionable whether elected officials should be receiving any such tickets unless they are attending an event substantially in the performance of a public function, i.e., their receipt of tickets given for a public purpose must, by definition, fit within the parameters of “public purpose,”. This concept should feature prominently in the letter of instruction issued in this case. If, however, elected officials receive blocks of tickets to either use or give away at their discretion the tickets they receive are reportable gifts if their value exceeds $100.4 To be clear, a ticket distribution method that permits elected officials to have unfettered discretion in the distribution of public benefits is the least preferred method under our suggested guidelines. While it appears that there have, no doubt, been instances where Section 2-11.1(e) was probably violated by City officials and employees, the City’s interpretation of Section 2-613 that tickets received pursuant to contractual agreement are excluded from reporting requirements- precludes a good faith prosecution of individuals operating under this advice. The City took the view that, because the tickets referred to in the complaint were obtained through a, contractually negotiated process, they were therefore considered “given for the use and benefit of the City.” Thus, in the City’s view, even after the tickets are distributed to officials or other government employees, they are not a reportable gift. This concept, which is true as it applies to the City as an entity, does not extend to the ultimate recipient of the ticket in so far as “gift” disclosure is concerned. This is so even if the recipient of the ticket is a City official. Merely because an official or employee receives a ticket obtained ostensibly for the “use and benefit of the City,” does not automatically make the use of that ticket for a “public purpose” or for “City business,” exempting the ticket recipient from gift
CEO 01-19, October 23, 2001.
reporting compliance. In other words, accepting tickets obtained through contractual negotiated arrangement by the City will not violate 2-613, but may still require gift reporting pursuant to 211.1 (e)(4) and where applicable, State of Florida reporting requirements. Disclosure is only not required when the ticket(s) is utilized for a legitimate public purpose, for example, when the official is present in their official capacity, on behalf of the City.5 Moreover, the letter of instruction ultimately issued in this case should stress that, where the government official or employee is given two (2) tickets (one for themselves and one for their spouse) the receipt of both tickets should be disclosed as a gift. This logic is not only consistent with FSEC opinion 92-33 but also with this Commission’s holding in ethics complaint C11-14. C11-14 involved a municipal City Manager who failed to disclose as a “gift” the cost of his spouse’s travel expenses which were paid for by the municipality. In making its determination, this Commission relied on FSEC opinion 06-27, which specifically held that a city official has received a “gift” when the city pays travel expenses for the official’s spouse to accompany the city official on a city-sponsored trip. It seems a natural extension that an invitation (or ticket) given to one spouse (who happens to be required to report gifts) that includes the offer to bring the other (non-reporting) spouse, is a “gift” to the reporting spouse not a separate, non-reportable gift to the spouse.6
CEO 01-19 spells out other usage criteria to include: attendance to promote economic development, recognize the contribution of city boards, neighborhood associations, youth groups and other community service organizations. 6 In INQ 09-65 and INQ 09-86, the former Executive Director of the COE advised Commissioner Rebecca Sosa that she must disclose as gifts all expenses associated with airfare and lodgings to the Canary Islands provided to her and her husband by an airline company in recognition of the Commissioner’s efforts in getting nonstop flights from MIA to the Canary Islands.
Conclusion: For the reasons set forth above, this complaint should be dismissed as to all Respondents and a General Letter of Instruction should be issued to the City of Miami that is consistent with this memorandum and the suggested guidelines recently promulgated by this Commission as well as any addendum thereto.
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