Crespo v City of Miami12-07

8/2/2019 Crespo v City of Miami12-07

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PROBABLE CAUSE MEMORANDUM

To: Miami-Dade County Commission on Ethics and Public Trust

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 Citys 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.

1 Probable Cause exists where there are reasonably trustworthy facts and circumstances for the Ethics Commissionto conclude that Respondent(s) should be charged with violating the Code of the City of Miami and/or the Miami-Dade County Conflict of Interest and Code.


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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 ofany board, commission or agency of the City, is expressly prohibited fromaccepting directly or indirectly, from any person, company, firm orcorporation to which any purchase order or contract is or might be awarded,any rebate, gift, money or anything of value whatsoever except wheregivenfor 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 Citys 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.

2 Sec. 2-11.1(e) (4) of the Miami-Dade County Conflict of Interest and Code of Ethics Ordinance.


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The Mayors Ball ticket allegations:

Complainant also alleges, and the evidence supports, that Norman Braman (Braman)

purchased tables for the Mayors Ball3 and subsequently, some City officials and employees

were given seats at those tables. The acceptance of tickets to the Mayors 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 ofeconomic value, whether in the form of money, service, loan,travel, entertainment, hospitality, item or promise or in any otherform, 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 inSubsection (b) (1) through (6) shall disclose as providedherein any gift, or series of gifts from any one person or

3The Mayors Ball is a charitable event that raised approximately $59,000 to benefit the Police Athletic Leaguechildrens boxing program.


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entity, having a value in excess of one hundred ($100.00).Said disclosure shall be made by filing a copy of the disclosureform required by Chapter 112, Florida Statutes, for local officerswith the Clerk of the Board of County Commissioners simultaneouslywith 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

aproper 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, 92-

33, 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


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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 Citys 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 Citys 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

4 CEO 01-19, October 23, 2001.


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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 2-

11.1 (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 Commissions holding in ethics complaint

C11-14. C11-14 involved a municipal City Manager who failed to disclose as a gift the cost of

his spouses 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 officials 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

5 CEO 01-19 spells out other usage criteria to include: attendance to promote economic development, recognize thecontribution of city boards, neighborhood associations, youth groups and other community service organizations.6In INQ 09-65 and INQ 09-86, the former Executive Director of the COE advised Commissioner Rebecca Sosa thatshe must disclose as gifts all expenses associated with airfare and lodgings to the Canary Islands provided to her andher husbandby an airline company in recognition of the Commissioners efforts in getting nonstop flights from MIAto the Canary Islands.


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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.

Crespo v City of Miami12-07

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Transcript of Crespo v City of Miami12-07