Are Attorneys Exempt From Florida Sunshine Law

MIAMI MIRROR TRUE REFLECTIONS
CommissionerExpositoandCityAttorneySmithWhisperingSweetNothings
CITYATTORNEYSANDFLORIDASSUNSHINELAW
AplainreadingtheFloridasSunshineLawanditsinterpretationbyFloridasSupremeCourtand Attorney General indicates that city attorneys at city commission meetings are subject to the Sunshine Law, therefore their transactions with commissioners should be seen and heard by the public. However, Victoria Frigo, Senior Attorney for the MiamiDade Commission on Ethics and Public Trust, has not referred secret discussions between the city attorney of the City of Miami Beach and one of its commissioners at a public meeting to the State Attorney for investigation, stating that the law is limited to discussions between cocommissioners, and she referredtheinquirertotheAttorneyGeneralforfurtherinformation. However, state law prohibits the Attorney General from providing advice about the Sunshine Law to private persons, although she has published a manual on the subject running into several hundred pages, one page indicating that government attorneys are not exempted by attorneyclient 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 andboardmembersatpublichearingssurelymustbepublicized.
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The Attorney Generals office has not responded to our inquiry as of the end of September 2013. Governor Rick Scotts office responded on several occasions, referring us back to local officials, yet the governor did not assist the public with that referral with a letter to the Miami Dade County Commission on Ethics or to the State Attorney. The Governor has not responded toarequesttoaskforaformalOpinionfromtheAttorneyGeneralontheparticularpoint.Such opinions may be requested and given under Florida law. The alternative provided by the Governor was to hire an attorney. Apparently everyone must hire an attorney to find out what thelawisinordertoobeyit,forignoranceofthelawisnoexcuse. Confronted with the official policy of prevarication as to the meaning of the Sunshine Law, we referred the matter back to Victoria Frigo, as can be seen from the Correspondence File below, and are awaiting her response if any. The Commission on Ethics has been remiss in responding to inquiries about the conduct of the Miami Beach city attorney, who has been extremely hostile to direct inquiries and has threatened retaliation for making public record requests, therefore questions are directed elsewhere. That is not to say that he is intentionally violating the Sunshine Law in his sidebar conferences with commissioners at meetings, for he and other government attorneys throughout the state may be violating the law unintentionally as a matter of habit, wherefore our request for the Attorney Generals enlightening opinion. And there may be some case law or Attorney General Opinion permitting such conferences, which wehaveaskedforsofarinvain. ThecontextofourinquirywastheCityCommissionsdenialofdueprocessintheprocurement ofacontracttomanagethecitystennisfacilities.Cityattorneysadvisedthecommissionthatit could not arbitrarily and capriciously select the incumbent bidder, who was last on the list of fourcandidatespresentedtothecommission,unlessitthrewoutallthebids.Thereforeallbids were rejected so that the incumbent bidder could remain in possession of an interim contract and be arbitrary and capriciously chosen to continue with its decadelong mismanagement of the tennis facilities. Although the action of the commission was clearly contrary to the publics interest in a fair and reasonable procurement process, apparently the top bidder has chosen not to bring suit since legal counsel has advised that the city can pretty much do anything it wants, a notion that is borne out by a long history infrequently punctuated by court losses and arrests. Forfurthercontextualinformation,see: TennisTravestyReduxMiamiBeach www.scribd.com/doc/170934030/TravestyReduxMiamiBeach
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FloridaAttorneyGeneralBondi
September17,2013 PamelaBondi AttorneyGeneral STATEOFFLORIDA Subject:IndependentPressInquiryReCityAttorneysandFloridaSunshineLaw HonorableMadameBondi: I have been referred to your good office by Victoria Frigo, Senior Staff Attorney for the Miami Dade Commission on Ethics and Public Trust, after I expressed doubt over her statement that, The Sunshine Law is not violated when one commissioner speaks to someone who does not serveasacocommissioneronthesamecollegiatebody.Ihadrespondedthat,Pleaseexplain why 286.011 Public Meetings and Records does not apply to conversations between a city attorney and commissioner. (3) (a) provides a fine for violation by any public officer. It would seem that the Sun of the Sunshine act should shine on those public meeting communications especiallysincethecitycharterprovidesthatacityattorneymayrecommendlegislation. Page 24 of your 2012 Government in the Sunshine Manual bears this statement under item 4. Legalmatters:
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In the absence of a legislative exemption, discussions between a public board and its attorney are subject to s. 286.011, F.S. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (s. 90.502, F.S., providing for the confidentiality of attorneyclient communications under the Florida Evidence Code, does not create an exemption for attorneyclient communications at public meetings; application of the Sunshine Law to such discussions does not usurp Supreme Courts constitutional authority to regulate the practice of law, nor is it at odds with Florida Bar rules providing for attorneyclient confidentiality). Cf. s. 90.502(6), F.S., stating that a discussion or activity that is not a meeting for purposes of s. 286.011, F.S., shall not be construed to waive the attorneyclient privilege. And see Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), stating thatall decisions taken by legal counsel to a public board need not be made or approved by the board; thus, the decision to appeal made by legal counsel after private discussions with the individual members of the board did not violate s. 286.011, F.S. There are statutory exemptions, however, which apply to some discussions of pending litigationbetweenapublicboardanditsattorney. Well, then, why not a commission as well as a board? The context of my concern is as I describedittoMs.Frigo: Last evening at 4:45 PM the City Commission of the City of Miami Beach considered the recommendations to the commission of a tennis committee who tooksealedbidsandratedapplicantsforthecontracttomanagethecitystennis facilities. The highest ranked bidder offered $120,000 per annum for the contract. The lowest ranked, the incumbent, bid $48,000. After that was revealed at the public hearing last evening, an angel [energy trader Mark Fisher] who was rumored to have flown in on his Lear Jet for the purpose, got up and promised to deposit $120,000 cash into an account for the incumbent who had bid only $48,000. Another gentleman testified that that was against the rules. (And then) it was noticed that the city attorney, whom by the Charter may recommend legislation, and Commissioner Exposito were engaged in a private talk on the dais. Exposito reportedly scoffed at the selection committee and its bidding process. Would a chat such as that possibly involve a violation of the SunshineLawordoesattorneyclientprivilegeexemptit? The outcome, Madame Attorney General, was the subversion of due process; the very process thatwasestablishedto evaluateandselectacontractor.Iaminformedthatanassistanttothe city attorney eventually testified that to select the incumbent, who was last on the list and should have never gotten onto the list presented to the commissioners, could create legal issues, and that the solution would be to toss out all the bids and let the contract remain on a monthtomonth basis with the incumbent. That was the foregone conclusion to the wasted process.
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Whatever might have been privately said behind the dais is probably of little moment, but whetherornotsuchchatsarepermittedbylawisofgreatconsequence. Now I have no doubt that city attorneys often have private chats with commissioners behind daises at public meetings, and no one pays any attention. Attention was paid here because it was intuited or induced from scanty information that this particular city attorney may have participated in or masterminded an overall strategy to make sure that the process, established by the community represented in its committees and resolved on by the commission, was circumvented in order to retain the incumbent, whose management has been suffered despite somanybreachesofcontractovertheyearsthatitappearstherereallyisnocontract,andthat it serves at the leisure of the ruling clique and their attorneys who appear to deem themselves sovereignorabovethelaw. Of course the content of the private chat may not have been germane or may have been quite harmless to the cause of justice. But does not the Sunshine law require the exposure of all proceedings during public hearings including statements made by city attorneys to commissions? ItwaswiththatinmindthatIcontactedMs.FrigoattheCommissiononEthics(COE).Ordinary people who find it difficult to get the attention of the State Attorney have been assured by the COE of its close relationship with the State Attorney; for example, COE Director Joe Centorino was a public corruption prosecutor for Kathy Rundle, and retired state prosecutors sometimes serve as COE investigators. However, as of late, it is believed, perhaps on insufficient grounds, thatCOEstaff,andparticularlyitsdirector,haveacollegiatebiasfavoringtheMiamiBeachcity attorney. Of course very important people such as city attorneys and commissioners have direct and immediateaccesstotheStateAttorneyandgetpromptattention.Forexample,itwasamatter of hours after Miami Beach Commissioners Deede Weithorn and Jonah Wolfson were seen conversing privately on the dais last year that the State Attorney initiated an investigation into the matter with great public fanfare in the press. Eventually, in May, the State Attorney found noevidencethatpublicbusinesswasdiscussed. Itwasamatterofdeepconcernastowhofiledthecomplaintinthatcase,relatedtotheforced retirementofCityManagerJorgeGonzalezinthewakeofFBIarrests,sothattheycouldbeduly retaliated against, as has been the unofficial custom in our sunny city by the beach, but the nameofthecomplainantwaskeptsecret. As for my inquiry, it is not a complaint, but simply an attempt to clarify the Sunshine law in a particularregardforthepublicbenefit.MindyouthatIamnotagreatfanoftheSunshinelaw, butthereitis,soletusknowwhatitis. Irealizethatyourofficenormallyrespondstosuchinquiriesasthisonebyreferringtheinquirer back to the very persons whose behavior s/he begs askance of, stating that the Attorney General is not allowed to provide legal information to private citizens, thus leaving inquirers
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and complainants without sufficient funds for legal fees in the lurch and subject to retaliations suchasmaliciousprosecutionsofcaseswhichcancost$250,000tosuccessfullydefend. The city attorney could naturally ask you for your opinion on this subject, and would not have to abide by it as law. Fat chance: our current city attorney has a thin skin and reacts hostilely withimpunitytowardpeoplewhodaretoquestionhisbehavior.Ireallyhavenobeefwithhim, but I have learned not to antagonize him with questions that he is bound to respond to with insults instead of answering as to facts and law. I only mention this in passing the buck to you soyoucanunderstandthepredicamentinwhichwefindourselveshere,notingthattheMiami DadeInspectorGeneralhasrefusedtoserveourcity,andthattheplantohavetheMiamiBeach Police Department Internal Affairs investigate allegations of official misconduct whether the officials are sworn police officers or not has been put on hold as a pipe dream and just words.Hencewearelefttobegsecretlyforfederalintervention. Perhaps you have authority to quote an AGO if one already exists, and to elaborate a little bit on the real reason why, when common sense believes public meetings should be public (meaning what is said and done can be heard and observed) influential city attorneys can conduct private conversations with commissioners or anyone else on the dais so that they cannot be heard nor recorded, and not run afoul of this law called GovernmentInThe Sunshine. Sincerely, DavidArthurWalters IndependentJournalist Cc:GovernorRickScott,Esq.
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ITY ATTOR RNEY JOSE E SMITH ANNOUNCE A ES HE WIL LL FILE SL LAPP MIAMI BEACH CI SUIT AG GAINST IM MPOVERISH HED INDEPE ENDENT SO OUTH BEA ACH JOURN NALIST Asked fo or his Source e of Income Statements, S Smith threat tens to sue David D Arthur r Walters August 31, 3 2013 UPD DATE Septe ember 12, 20 013 MIAMI BEACHIn B n a response e to a public records requ uest for his Source S of Inc come Statem ments, Miami Beach B City Attorney A Jose Smith yes sterday anno ounced in an n August 30email direct ted to City Cler rk Rafael Granado, G and d Maria Moy ya Denham, whose role in the matte er is unknow wn at press tim me, and to ind dependent jo ournalist Dav vid Arthur Walters, W that he intends to sue Walter rs for defamation. Ralph, In I preparatio on for a def famation law wsuit against t Davie (sic) ) Walters, pl lease provid de me with cop pies of all public record d requests he h has ever made about t me, as well as all lob bbyist registrati ion forms or r disclosures he has ever r filed with your y office while w lobby on behalf of o any city empl loyee or property owner r over the las st 5 years. In n addition, I would like to t see any an nd all occupatio on licenses, business tax x receipts or permits eve er issued to him h on any property p he owns or contro ols. Specifica ally, please forward f any documents showing s him m to do busin ness in the city as a journa alist. I am happy h to pa ay in advanc ce for the co osts of this request. r Tha ank you for your cooperati ion. Jose I feel lik ke an indepe endent journ nalist feels in n Cuba, Walters W said in n a written statement, s w when he asks questions q of the Castro regime. r Inste ead of simpl ly respondin ng to a quest tion with wh hether or not he e as a city attorney a is required r by law to file Source S of In ncome State ements, whic ch he should know k since he h is a law wyer, he reso orts to chara acter assassi ination. He does that in his official City C Attorney y email, as if such condu uct is within n the scope of o his duties, then he wan nts to take off his h City Atto orney Hat an nd put on his s personal ha at. I notice ed that his an nnouncemen nt referred to o me as a jo ournalist in quotes, i.e., as a journa alist, and he do oes so to ind dicate that I am independ dent inasmuch as I do no ot conform to t his dictate es. At least pow werful city attorneys a he ere cannot have h journali ists thrown in prison fo or making public p
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record requests, advocating better government, and opining on their conduct, but they can try to dig out something to have them charged, say, for not registering as a lobbyist. In that regard, he cannot understand that something besides gold motivates activist journalists. I have not received a penny for my pro bono activism from anyone. My understanding of the county ethics code is simply that all city attorneys and their assistants are supposed to file Source of Income statements. Maybe they can file something somewhere else as a substitute, and I would like to know that if it is true. If true, the substitute should be filed with the city attorney and time and date stamped with then others. What lobby registration or business licenses or anything I say has to do with his requirements for filing financial disclosures is a mystery except that he is seeking some information to retaliate against me for asking for that public record. I say without reservation that Jose Smith must go, he must retire with whatever honors he has, for he is the vestige of the old regime of government by intimidation under threat of retaliation. The public records request that aggravated Smith to make his threat has a fascinating history, hailing back to an effort by Smith to have two special magistrates fired. Walters reported on a legal oversight committee meeting held on the matter last year, with his article Showdown at High Noon, Miami Beach City Attorneys versus Special Masters. After the meeting he asked for a biography of one of the antagonists, Senior Assistant City Attorney Alexandr Boksner, the only attorney whose information did not appear on the city website at the time. As a former State prosecutor and Police Legal Advisor, his biography and other personal information is exempt from public disclosure, responded Smith. City Clerk Rafael Granado quoted public record law to the contrary, but no biography was provided in response to the public record request. As it was, Boksner has applied for a job with another government entity that posted the information online, so that information was used by Walters. The office of the city clerk did provide Walters with a copy of Boksners Source of Income Statement for the year 2011, stamped Received by the City Clerks Office on July 2, 2011, along with his May 15, 2012, letter to Smith memorializing their conversation regarding his outside employment with the Coral Gables Police Department, and adding that he was also serving as a special magistrate for the Town of Surfside. Subsequently, on September 5, 2012, Walters filed a public records request with the city clerks office, which we have retrieved: Ms. Beauchamp, thank you again for your speedy fulfillment of PRR 7020 (attached). In my experience, the City Clerks Office always provides excellent public records services. I cannot begin to tell you how much difficulty I and my colleagues have had elsewhere in getting the simplest requests answered. Your swift response has attracted further strong interest in the city attorneys personnel policies. I intend to ask the city attorney a few polite questions based on my HR director experience, but to do so intelligently, I shall first need 1) the same information that you provided me for Mr. Boksner on all the attorneys in his office, including Mr. Smith, i.e. declarations of outside employment, and 2) the last report on compensation including benefits of all those attorneys. I recall seeing a report somewhere on the website but do not recall how to get it. Thank you. David Arthur Walters
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Florida Governor Scott
September 18, 2013 Subject:IndependentPressInquiryReCityAttorneysandFloridaSunshineLaw Dear Mr. Walters: Thank you for contacting Governor Rick Scott's Office. The Governor appreciates your concerns and asked that I respond on his behalf. Our government is structured on the principle that local communities can best assess the needs of their residents. Voters elect their county officials to manage local government business. Those dissatisfied with local officials' performance can always make their views known directly to those officials. I understand you shared your concerns with your local government and local ethics office. That was the appropriate thing to do. Under Florida law, violations of the conflict of interest laws fall within the jurisdiction of the Florida Commission on Ethics. Those who wish to file a complaint with the commission, can obtain a complaint form on the commission's Web site at www.ethics.state.fl.us. For further assistance, you may wish to contact the commission by calling (850) 488-7864, or by writing to Post Office Drawer 15709, Tallahassee, Florida 32317-5709. Those with allegations of crimes and misconduct by public officials should bring their information and evidence to the attention of law enforcement and the state attorney in the local jurisdiction where they believe crimes are taking place. Each state attorney is an elected official
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charged with certain discretionary duties, including the duty to determine whether or not to prosecute any particular crime committed within his or her jurisdiction. This decision is based on the quality and quantity of the evidence of guilt shown, and in the best interest of justice. Law enforcement agencies and the state attorneys operate independently of the Governor's office. As elected officials, they answer to the voters of their individual jurisdictions. Contact information can be obtained online. I understand you shared your concerns with the Florida Department of Legal Affairs; however, it is my understanding the Attorney General and the Department do not provide legal opinions to private citizens. If you have legal questions, you should seek legal counsel from a licensed attorney. [$250/hr] Thank you again for taking the time to contact the Governor's Office. We hope this information is helpful. Sincerely, Warren Davis Office of Citizen Services Executive Office of the Governor
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David Arthur Walters
19 September 2013 Warren Davis Office of Citizen Services Executive Office of Governor Rick Scott STATE OF FLORIDA Tallahassee, Florida Subject: A Fair Game of Tennis in the Sunshine Dear Mr. Davis: Thank you for responding to my letter to Attorney General Pamela Bondi, wherein I asked her for her advice on whether or not Floridas Sunshine Law requires the exposure of all transactions during public hearings, including conversations between city attorneys and city commissioners, such as the secret conversation on the dais between a commissioner and the city attorney at the September 11, 2013, hearing on sealed bids made pursuant to a request for proposals to manage the tennis centers of the City of Miami Beach. Some background is required for Governor Scott to understand why I believe his personal attention to the Sunshine Law in this matter is important to the welfare of our state. As an attorney himself, I know that our governor, if not offended by my rather common opinion on lawyers, will find some merit in my thoughts regardless of the technical issue I have raised as pretext for contributing to the greatest of conversations. You may have heard that the City of Miami Beach, once a notorious refuge for mobsters, was recently subjected to yet another embarrassing corruption scandal with several F.B.I. arrests of city employees. The city manager was forced to retire after thirteen years of serving the entrenched bureaucracy. He was scapegoated for conducting business-as-usual, which included, according to reformers, alleged hanky-panky over city contracts involving a subversion of due process, which should provide a fair and orderly method for awarding city contracts. His main fault in my opinion was his arrogance. It was as if he were above the law as a sovereign city boss; however, as his fate proved, he was ultimately only the manager. Last week Bal Harbour, with an eye on real estate development, hired him as its city manager. It is said that
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members of the entrenched bureaucracy of Miami Beach, some of whom have vested interest in Bal Harbour or nearby, highly recommended their former manager. In any event, the severance package Miami Beach provided more than amply compensated him for his brief period of unemployment. Our Miami Beach legislature like those of other cities ordained a certain process for the awarding of contracts, a process that the bidders for the tennis contract complied with. The incumbent contractor, whose breaches of contract over the last decade under the entrenched bureaucracy were tolerated to such an extent that there is really no contract but service at the will of the ruling elite; to which the community finally and mightily objected, fomenting a virtual tennis court revolution for the restoration of a legitimate due process that would engage excellent government of the tennis facilities. The reactionary element managed to insert the incumbent as the fourth bidder on the finalist list submitted to the city commission for decision; normally there are only three finalists submitted in case the first and second drops out. The reactionaries orchestrated a demonstration at the commission meeting that provided their representative commissioners with a pretext for subverting the process and retaining the incumbent by tossing out all the bids; the subversion was performed under the advice of city attorneys and attorneys sitting on the commission. The city attorney on the dais was observed chatting privately with a commissioner, a lawyer who took part in setting up the process for the tennis interests, but who then supported the subversion, denouncing the due process. Two commissioners courageously voted against the perversion, both of them attorneys, despite the uncivil raucous raised by the uniformed crowd of political demonstrators brought in by the reactionaries. Our new city manager, a Harvard Law School graduate, duly supported the process and recommended the high bidder. The leading reactionary commissioner, a lawyer who poses as a populist reformer and who supports a businessman who wants to purchase the mayors office, which pays eight-thousand a year, for over one-half million dollars, put forth the strategy: toss the bids, leave the contract month-to-month with the incumbent, return to waive the bidding process, and award the contract. The city manager may recommend a waiver, but he has indicated he is not about to do that. Therefore it appears that, if the bidding process must be resorted to, it will be resorted to time and again until the reactionaries manage to manipulate the evaluations so that the incumbent be put in the first position instead of last on the list. It remains to be seen whether or not the high bidder will bring legal action for the denial of due process afforded by the travesty. That would be an expensive proposition given the going rate for lawyers with expertise in such travesties. ($250 per hour) So now I believe Governor Scott can understand my opinion that the Sunshine Law may be and should be interpreted to forbid the whisperings of attorneys in the ears of kings during public hearings. I believe the doctrine of sovereign immunity, that kings can do no wrong, supported by the Florida Supreme Court in Trianon Condominiums v Hialeah, may have gone to the heads of too many city attorneys.
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Of course there would be less need for interpretation of our Sunshine Law if Aristotle had written the statute. As it sloppily stands, a barn door is left open for pettifoggers to quibble all to the contrary, all of whom will say that it is crystal clear that lawyers should be excluded. Sadly, we no longer have a Law Revision Council in this state, which is something the governor may want to attend to since the Florida Bar is not interested in revision not directly appertaining to its own profession, or at least the Bar has not given an opinion on my inquiries on the subject. The Law Revision Council, by the way, served a similar purpose as the Ministry of Justice concept proposed by Benjamin Cardozo. And the ancient jurists had their law clerks periodically revise the entire code for clarification and applicability. You may be interested to know that a contact of mine at the Florida Bar weighed in on the subject by sending me a copy of an informative article in the Tribune Herald; to wit: everyone should be familiar with the Sunshine Law; it is complicated; hire a lawyer. ($250 per hour) So this is not so much about our Sunshine Law as about due process under the rule of law instead of men. Everyone should enjoy a fair and orderly process regardless of the nature of their business, whether their game is tennis or strip club shows. With all due respect for lawyers who have fought for and who have won so many rights and privileges for us all, it should be observed that the notion of rule of law today is a vanity that masks the extraordinary power lawyers have over society in all walks of life. The Rule of Law is actually the Rule of Lawyers whose fundamental rule is to win at all costs notwithstanding the niceties of their reluctantly enforced codes of professional conduct whose very prohibitions identify the most frequent misconduct. I believe the governor will agree with the understatement that lawyers make the rules and rule themselves, answering to none except themselves, and believe that they, like Socrates, have privileged access to universal ideals although all they possess are rules of thumb arrived at through centuries of pettifoggery. Their monopoly on practice and privileged access to the courts provides them with an unfair advantage over everyone else. In any case, the rule of law is that nobody should be above the law including government officials, many of whom are officers of the court. If we are not to have recourse to revolution, we must be protected by the rule of law. Of course that is a subject Attorney General Pamela Bondi is most interested in, so that is why I addressed her, with a copy to the governor, for she often refers inquirers to the governor as well as referring them back to the very local officials who have managed over time to subvert the processes to gain and maintain sovereignty over their interlocking localities. And the governors office does the same. As you said: Our government is structured on the principle that local communities can best assess the needs of their residents. Voters elect their county officials to manage local government business. Those dissatisfied with local officials' performance can always make their views known directly to those officials. I understand you shared your concerns with your local government and local ethics office. That was the appropriate thing to do.
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That brings me to my pet peeve, that the principle of pluralism and federalism in Florida is either misunderstood or misapplied to the neglect of the populace. That principle, by the way, which provides for local discretion over local affairs, is favored by business to its profit. That local discretion in business is not allowed to circumvent or subvert central control over vital core functions. But in government the principle of local autonomy with central control of core functions is all too often a zero su m game that advances the power elite and diminishes the citizens share in the spoils. S/he is eventually left on the fringes of the camp begging for scraps. If I say that the local state attorney and the local ethics commission are not doing their jobs properly, the governor and the attorney general will refer me to the local state attorney and the local ethics commission, or the State Attorney of state attorneys, or the Ethics Commission of ethics commissions. If I say the county inspector general is refusing to serve a city in his county, I suppose I shall be referred to the Inspector General or mother of all inspector generals. If I say a city attorney is abusing his or her power and that the members of the local commission are in on the game and will do nothing about it, I am referred to various local agencies that will not take complaints seriously unless I allege a crime and do their job for them, come up with hard evidence supporting probably cause, and then they will probably fall asleep on the evidence, or give the official a heads up or a tiny fine, and say that the law is meant to obtain compliance and not to punish. So, as you can see if you have a vivid imagination, scores and scores of people are treated like tennis balls to be batted back and forth over the net, with the government winning every match, thanks to an interlocking network of lawyers. I recall here a Brevard County woman who had been battered by her husband, and then by lawyers and judges. Soon deprived of her hard earned personal property, with services denied by Legal Aid because it has more important people to aid, she was suffering from Legal Abuse Syndrome. She read somewhere that it was the governors job to enforce the laws, so she went to the governors office, where she was ejected. Fortunately for her, she was not tossed in a madhouse. Finally, if I ask the attorney general for an opinion on what a hostile city attorney must do, I am told that the attorney general cannot give advice to private citizens, but the city attorney can ask her for an opinion. Well, then, since the city attorney may with sovereign impunity be hostile to the extent of publicly defaming anyone who questions his conduct, calling him a madman, threatening to slap him with an expensive lawsuit just for begging askance, cannot the attorney generals boss, the Governor of the State of Florida, Get to Work and ask the question? Sincerely, David Arthur Walters cc: Attorney General Pamela Bondi
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Attached: Letter from Governor Scotts office (below) Edna Jane Favreau and Charlie Crist, Equal Justice Under the Law Denied http://www.scribd.com/doc/39328801/Edna-Jane-Favreau-and-Charlie-Crist I Was In The Wrong Court by Edna Jane Favreau. Chances are you will be divorced and then one of
you will have an even greater chance of getting hurt because you cannot afford a lawyer http://www.scribd.com/doc/39010159/I-Was-in-the-Wrong-Court-by-Edna-Jane-Favreau
Rick Scott and Pamela Bondi
September 18, 2013 Dear Mr. Walters: Thank you for contacting Governor Rick Scott's Office. The Governor appreciates your concerns and asked that I respond on his behalf. Our government is structured on the principle that local communities can best assess the needs of their residents. Voters elect their county officials to manage local government business. Those dissatisfied with local officials' performance can always make their views known directly to those officials. I understand you shared your concerns with your local government and local ethics office. That was the appropriate thing to do.
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Under Florida law, violations of the conflict of interest laws fall within the jurisdiction of the Florida Commission on Ethics. Those who wish to file a complaint with the commission can obtain a complaint form on the commission's Web site at www.ethics.state.fl.us. For further assistance, you may wish to contact the commission by calling (850) 488-7864, or by writing to Post Office Drawer 15709, Tallahassee, Florida 32317-5709. Those with allegations of crimes and misconduct by public officials should bring their information and evidence to the attention of law enforcement and the state attorney in the local jurisdiction where they believe crimes are taking place. Each state attorney is an elected official charged with certain discretionary duties, including the duty to determine whether or not to prosecute any particular crime committed within his or her jurisdiction. This decision is based on the quality and quantity of the evidence of guilt shown, and in the best interest of justice. Law enforcement agencies and the state attorneys operate independently of the Governor's office. As elected officials, they answer to the voters of their individual jurisdictions. Contact information can be obtained online. I understand you shared your concerns with the Florida Department of Legal Affairs; however, it is my understanding the Attorney General and the Department do not provide legal opinions to private citizens. If you have legal questions, you should seek legal counsel from a licensed attorney. [$250 per hour?] Thank you again for taking the time to contact the Governor's Office. We hope this information is helpful. Sincerely, Warren Davis Office of Citizen Services Executive Office of the Governor
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September24,2013 WarrenDavis OfficeofCitizenServices ExecutiveOfficeoftheGovernor Mr.Davis, Thankyouverymuchforyourresponse. Is it within the constitutional power of the Governor to ask the Attorney General to give her reasoned opinion as to whether or not Florida's Sunshine Law applies to discussions between cityattorneysandcitycommissionersonthedaisatpubliccommissionmeetings? Verytrulyyours, DavidArthurWalters NOTEFLORIDASTATUTES 16.01(3) Notwithstanding any other provision of law, shall, on the written requisition of the Governor,a memberof theCabinet,theheadofadepartmentintheexecutivebranchofstate 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 writtenrequisition of a memberof the Legislature, other state officer, or officer ofacounty,municipality,otherunitoflocalgovernment,orpoliticalsubdivision,giveanofficial opinion and legal advice in writing on any question of law relating to the official duties of the requestingofficer. 16.08 Superintendenceanddirectionofstateattorneys.TheAttorneyGeneralshallexercise 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,shallgivethemherorhisopinionuponanyquestionoflaw. 16.09 Regulations as to the reports of state attorneys.The Attorney General shall prescribe the time and manner in which regular quarterly reports shall be made to him or her by state attorneys,andtheyshallcomplywiththeAttorneyGeneralsinstructionsinthisrespect. History.s.3,ch.2098,1877;RS91;GS94;RGS108;CGL132;s.49,ch.95147.
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September24,2013 DearMr.Walters: ThankyouforcontactingGovernorRickScott'sOfficeandclarifyingyourconcerns.Althoughwe appreciate the opportunity to respond, as indicated in previous correspondence, the Governor doesnotadministerlocalgovernmentsandtheGovernorisunabletoprovidealegalopinion. TheGovernor'sofficeisunabletointerveneinissuesthatshouldberesolvedthroughthecourt system. You are correct that those with complaints about locally appointed officials should bring their concernstotheattentionoflocallyelectedofficials.TheGovernordoesnotadministerlocallaw enforcement agencies and the Attorney General does not administer the offices of locally electedstateattorneys.Thosewithallegationsofcrimesshouldbringinformationandevidence to the attention of law enforcement in the local jurisdiction where they believe a crime occurred. The elected state attorney in your judicial circuit makes the decision whether or not toprosecuteanyonewhomaybeguiltyofacrimecommittedinthatcircuit. Those who are unhappy with a ruling or feel acase has not been handled according to the law, should speak with an attorney about what appellate procedures may be available. The person who can best answer your legal questions is an attorney. If you need assistance in locating an attorney,pleasecalltheFloridaBar'sReferralServiceat18003428011. It is notable that Attorney General Pam Bondi is a statewide elected official who has administrativeauthorityovertheFloridaDepartmentofLegalAffairs.TheDepartmentisnotan executive agency under the administration of the Governor and the Attorney General's Office doesnotadministertheofficesoflocallyelectedstateattorneys. Your best source of assistance for issues that should be resolvedthrough the court system is to consult a licensed attorney. We are sorry we are unable to be of further assistance. Please knowthisisduetoalackofjurisdiction,notalackofconcern. Thankyouagainforwriting. Sincerely, WarrenDavis OfficeofCitizenServices ExecutiveOfficeoftheGovernor
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26 September 2013 Victoria Frigo Senior Staff Attorney MIAMI-DADE COUNTY COMMISSION ON ETHICS AND PUBLIC TRUST Miami, Florida Subject: Sunshine Law Application to City Attorneys at Commission Meetings Dear Ms. Frigo: I have taken your advice and have re-visited Florida Attorney General Pamela Bondis website. It appears that your opinion, that The Sunshine Law is not violated when one commissioner speaks to someone who does not serve as a cocommissioner on the same collegiate body, is erroneous. You will recall that the context of my inquiry involved private discussions held on the dais by the city attorney for the City of Miami Beach with one of its commissioners during a regular public meeting of the commission. Several people witnessed the two conversing privately offmicrophone during the meeting. I asked if the private chat was subject to the Sunshine Law or if it was protected by attorney-client privilege. It appears from the record that such conversations are indeed covered by the Sunshine Law, are not subject to attorney-client privilege, and should be heard and recorded as public record, at least according to the Florida Supreme Court and the Attorney General. The only question, settled long ago in the affirmative, has been whether a meeting by a council with its city attorney to discuss pending litigation is subject to the law. Page 24 of the Attorney Generals 2012 Government in the Sunshine Manual bears this statement under item 4. Legal matters: In the absence of a legislative exemption, discussions between a public board and its attorney are subject to s. 286.011, F.S. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (s. 90.502, F.S., providing for the confidentiality of attorneyclient communications under the Florida Evidence Code, does not create an exemption for attorneyclient communications at public meetings; application of the Sunshine Law to such discussions does not usurp Supreme Courts constitutional authority to regulate the practice of law, nor is it at odds with Florida Bar rules providing for attorneyclient confidentiality). Cf. s. 90.502(6), F.S., stating that a discussion or activity that is not a meeting for purposes of s. 286.011, F.S., shall not be construed to waive the attorneyclient privilege. And see Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), stating that all decisions taken by legal counsel to a public board need not be made or approved by the board; thus, the decision to appeal made by legal counsel after private discussions with the individual members of the board did not violate s. 286.011, F.S. There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney.
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In Neu v Miami Herald, the Court agreed to declare on the issue because it was of great public importance: Because of the continuing significance of the issue, the court certified the following question of great public importance: Whether the Sunshine Law applies to meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party. State ex rel. Reno, 434 So.2d at 1036. We answer the question affirmatively and approve the decision of the district court. The petitioners wanted the Court to construe 286.011 narrow and hold that it applies only to the meetings where official actions and acts are approved by the governing body. The Court, as we can see, refused, therefore the same rule applies to all meetings. The Courts broad construction was cited in the Florida Attorney General Robert A. Butterworths Advisory Legal Opinion, Number AGO 97-61, dated September 15, 1997, in respect to conversations with school board members with a school board attorney: In sum: 1. Discussions regarding school business between individual school board members and the school board attorney are not attorney-client conversations and, therefore, are not privileged communications. 2. A school board attorney may memorialize, in writing, any conversations with an individual school board member or the superintendent. These documents are public records subject to inspection and copying pursuant to section 119.07(1), Florida Statutes (1996 Supplement). 3. No violation of any constitutional due process or privacy right of either the custodian or the subject of public information would occur if such information is discussed or considered by the school board attorney and the board members and the superintendent. ... The Government in the Sunshine Law has been construed to apply to all meetings between governmental agencies and their attorneys. In 1993, the Legislature enacted a specific exemption from the open meetings requirement of section 286.011(1), Florida Statutes, for meetings between an entity's attorney and certain designated individuals to discuss settlement negotiations or strategy sessions related to litigation expenditures. However, as this office recognized in Attorney General's Opinion 95-6: "Section 286.011(8), Florida Statutes, does not create a blanket exception to the open meeting requirement of the Sunshine Law for all meetings between a public board or commission and its attorney. The exemption is narrower than the attorney-client communications exception recognized for private litigants. Only discussions on pending litigation to which the public entity . . . is presently a party are subject to its terms. Such discussions are limited to settlement negotiations or strategy sessions related to litigation expenditures."
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These opinions support the previous objection I made to your opinion to the contrary, and objection based upon my laymans understanding of the intent of the legislation after a plain reading of the statute itself, to which I believe attorneys should directly go to before considering anything people might say about it. Perhaps you have available some higher authority to support your opinion given your expertise, experiential wisdom, and research tools, and would like to reveal what it is instead of further reference to the Office of Attorney General. That would dovetail with the Ethics Commissions core purpose of educating the public. The Ethics Commission, or rather its staff, advertises that it will consider issues outside of its narrow jurisdiction, and, if it suspects some law has been violated, will refer the matter to the State Attorneys Office, to which it has special access. As you probably know, the Attorney General is precluded by law from rendering a legal opinion to private parties, and normally refers all questions back to the very local authorities who are not inclined to answer questions or to beg askance of the Attorney General on the instant issue. I went down that road and was run around the bush. Or the Attorney General naturally advises the inquirer to hire an attorney. The Florida Bar kindly sent me a September 16, 2013, article published by the Herald-Tribune, entitled, Learning about Sunshine - Public officials should take time to study Florida's opengovernment laws. The bottom line is, Nothing beats expert advice from a lawyer. So, the Sarasota County Bar Association is teaming with the Florida attorney general's office to provide a local workshop on the laws. Attorney Pat Gleason, the attorney general's special counsel for open government, will lead a learning session in Sarasota on Oct. 11. Non-lawyers like me generally do not have the means or the privilege of attending such workshops, yet everyone concerned should know what the law in order to abide by it whether they have a monopoly on practicing law or not. I am told that an attorney specializing in Sunshine Law may cost the inquirer from $250 - $500 per hour. In conclusion, I pray that you will provide some superior authority than your word to support your opinion that city attorneys may have secret conversations on the dais with city commissioners, as was witnessed in Miami Beach, without violating the Sunshine Law. Or, if you agree with my lay understanding of the information available to me, to take such steps as necessary to have it confirmed or denied by the Attorney General so that the correct interpretation of the law may be published far and wide. Sincerely, David Arthur Walters Cc: Governor of the State of Florida The Florida Bar Attorney General of the State of Florida
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October17,2013 WarrenDavis OfficeofCitizenServices ExecutiveOfficeoftheGovernor Subject:CantheGovernorasktheAttorneyGeneralforherOpinion? DearSir: I have not received a response from you to my September 24 letter inquiring whether or not Governor Scott has the constitutional power to ask the Attorney General for her reasoned Opinion as to whether or not Florida's Sunshine Law applies to discussions between city attorneysandcitycommissionersonthedaisatpubliccommissionmeetings. ItappearsthattheFloridaStatutesprovidethattheGovernormayaskforsuchanOpinion: 16.01 Residence, office, and duties of Attorney General.The Attorney General (3) Notwithstanding any other provision of law, shall, on the written requisitionoftheGovernor,amemberoftheCabinet,theheadofadepartment 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 ofacounty,municipality,otherunitoflocalgovernment,orpoliticalsubdivision, giveanofficialopinionandlegaladviceinwritingonanyquestionoflawrelating totheofficialdutiesoftherequestingofficer. Since no authority has said otherwise on request, I assume that an explicit Opinion on the question has not yet been rendered. Except for the denial by the senior counsel for the Miami Dade Commission on Ethics and Public Trust, which promises to forward information on violations of law to the local State Attorney office, all the information I have been provided on the subject, including the pertinent statute, the Attorney Generals Manual, and case law, supportthenotionthattransactionsbetweencityattorneysandcitycommissionsorcouncilsat publicmeetingsareindeedsubjecttotheSunshinelaw. The Supreme Court of Florida, in Neu v. Miami Herald Publishing Company, Case No. 61451, January 17, 1985, recognizing that a similar question was of great public importance, held that meetings between city attorneys and councils discussing litigation are subject to the Sunshine Law:
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Because of the continuing significance of the issue, the court certified the following question of great public importance: Whether the Sunshine Law applies to meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party. State ex rel. Reno, 434 So.2d at 1036. We answer the question affirmativelyandapprovethedecisionofthedistrictcourt. It is reasonable to infer that regular meetings, not involving litigation, are also subject. However, since the city attorneys, city commissioners who are attorneys themselves, and county ethics attorneys obviously disagree with the inferences made from that case, a plain reading of the statute, and the Attorney General Manual, it appears from my perspective as a navelaymanthatitisofgreatpublicimportancethattheAttorneyGeneralprovideanOpinion preciselyonpointtobolsterthelaggingpublictrust. Wherefore I pray that Governor Scott will put the question asked to Attorney General Bondi, notwithstanding the boilerplate policy of Florida governors not to answer to ordinary private citizens when they are rebuffed or apparently misinformed by local officials when asked about the meaning of the law all officials are supposed to obey, referring them back to those local officials,whooftenrecalcitrantandsometimeshostiletowardscitizensbeggingaskanceoftheir conduct, or to recommend that private citizens hire attorneys at great expense since attorneys answer only to themselves unless retained, or to file a complaint when a complaint might not be warranted if the law were understood by everyone concerned and therefore followed, et cetera. Thankyouinadvanceforyourassistance. Verytrulyyours, DavidArthurWalters cc:PamelaBondi,AttorneyGeneral
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October18,2013 JimmyMorales CityManager CITYOFMIAMIBEACH Suggestion:MBCodeSec.222(14)IndoctrinationGovernmentinSunshineLaw DearSir: I believe the administrations procedure on the indoctrination of individuals appointed to agencies, committees,andboardsastotheGovernmentintheSunshineLawneedstobeimproved. Attached please find a copy of the documents I received from the City Clerk in response to my public record request for precisely what explanation of the GovernmentintheSunshine Law is given to individualsappointedtoagencies,committeesandboards: Upon appointment, individuals shall receive an explanation of the government in the sunshine law, public records law, conflict of interest policy, mission statement, attendancerequirementsandotherpertinentinformation. I was presented with what appears to be the citys indoctrination package on the subject, stapled into three bundles, consisting of 1) the Florida Commission on Ethics 2013 Guide to the Sunshine AmendmentandCodeofEthicsforPublicOfficersandEmployees,2)MBSec,211.1(s)Lobbying,and3) MBSec.222GeneralRequirements,Sec.223Servingonmorethanoneboard,agency,orcommission, 224Terminationofoffice,Sec.225Prohibitingserviceoncity boardsbycertainpersonsoremployees, 2458 Supplemental abstention and disclosure requirements, Sec. 2459 Certain appearances prohibited,Ordinance20063543AdoptingSec.221and222. Most of the information appertains to ConflictofInterest law and the Sunshine Amendment enacted in 1976,anddoesnotcovercriticalaspectsoftheGovernmentintheSunshineLawenactedin1967. I suggest that the package of documents or Internet links given to appointed individuals include the full text of the State, County and City laws, the Florida Attorney Generals Government in the Sunshine Manual, the Florida Ethics Commissions Guide to the Sunshine Amendment, along with a clear and cogentsynopsisorsummaryofthesubjectmatter.
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Furthermore, I have good reason for suggesting that not only individuals appointed to boards, agencies, and committees be provided with that information, but that appointed city managers and attorneys, and elected commissioners also be fully apprised of the GovernmentintheSunshine Law when taking office. I notice that the MiamiDade County League of Cities Elected Officials Handbook includes informationonthatlaw. The interpretations and ramifications of the GovernmentintheSunshine Law, which is in dire need of redrafting, are such that even attorneys need guidance. Bar associations occasionally sponsor seminars on the subject. Perhaps the city can have one of its attorneys and city commissioners attend those seminarsand/ortakerelatedcourses. YoursTruly, DavidArthurWalters cc: CommissionerJorgeExposito TheFloridaBar Attached:ThisLetter&PDFScanofdocumentsreceivedfromtheCityClerk
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23October2013 VictoriaFrigo SeniorStaffAttorney MIAMIDADECOUNTYCOMMISSIONONETHICSANDPUBLICTRUST Miami,Florida FollowUp:ApplicationofSunshineLawtoCommissionerConversationswithCityAttorneys Ms.Frigo: I have not received a response from you to my 26 September letter asserting that you may have been mistaken in your legal opinion that transactions between city commissioners and city attorneys on the daisatpublicmeetingsarenotsubjecttoFloridasGovernmentintheSunshinelaw. For example, City Commission Jorge Exposito and City Attorney Jose Smith were captured on video whispering to one another at 5:33:05 PM at a City Commission Meeting held on 11 September. A still image of that evidence is attached. In addition, witnesses observed them engaged in an inaudible conversationoutsideoftherangeofthecamera. The matter at hand was the consideration of bids for the contract to manage the citys tennis facilities. What transpired at that meeting was, in the opinion of objective observers, a typical example of maladministration and dysfunctional government. A sneaky, unreasonable and arbitrary maneuver was made to deny due process in direct contradiction to the spirit of Floridas law guaranteeing a fair andreasonableprocurementprocess. What transpired between the city attorney and city commissioner on the dais was of great importance to the public and should have been on the public record. It is reasonable to suppose that they were not talkingaboutwhattheyhadforbreakfast. Page1of2

In my opinion, the commissioner was probably seeking legal advice on how to skirt due process and keep the contract with the incumbent contractor, who was last on the list and was demonstrably unqualified. The commissioners subsequent public discussion and crucial vote to throw out all the bids andtokeeptheunqualifiedincumbentonthejobsupportsthatreasoning. I opine that the commissioner had the proxy of Commissioner Deede Weithorn, whose support or endorsementhemayneedforhiscurrentcampaigntokeephisseat.Weithornrecusedherselffromthe meetingbecauseherbrotherandlawisonethirdownerofthecontractingcompany.Shealsoprepares that companys tax returns (attached). I presume that your office has determined that she has no conflictofinterestwhatsoever. Thus far, 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 havenotofferedanythingtosupportyourposition,preferringtoremainsilent,Isupposeyouagreewith myopinion:Quitacetconsentirevidetur. PleaseunderstandthatIhavenoaxetogrindwiththecommissionerorthecityattorney,bothofwhom probablybelievedtheirconversationwasproperevenifitwereaviolation.Myinterestisindueprocess 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 certainpersons. The Commission on Ethics advertises that it refers matters outside of its limited jurisdiction to the State Attorney. Therefore I ask that you send the file along to the State Attorneys office for her opinion on thematter. Verytrulyyours, DavidArthurWalters Cc: JoeCentorino,Director
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On9/13/13,Frigo,Victoria(COE)<FRIGOV@miamidade.gov>wrote: I'vecopiedthefollowingquotefromtheAG'swebsiteat http://myfloridalegal.com/pages.nsf/Main/321B47083D80C4CD8525791B006A54E3 Whatqualifiesasameeting? TheSunshinelawappliestoalldiscussionsordeliberationsaswellastheformalactiontakenby a board or commission. The law, in essence, is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. There is no requirementthataquorumbepresentforameetingtobecoveredunderthelaw. Ms. Frigo. Thank you very much. The quote you sent along is only part of the literature on the subject;therestsupportsmyperspective.Pleasefindattachedafileincludingthesilenceofthe AttorneyGeneralandtheGovernor'savoidanceontheQuestion.ItoccurredtomethatifState AttorneyKathyRundlegaveheropinionandmadeaformalrequesttheAttorneyGeneralmight consider giving a formal Opinion. Has the State Attorney's office already rejected the issue? DavidArthurWalters Cc:GovernorRickScott<Rick.Scott@eog.myflorida.com> Cc:DOSS.VIRLINDIA@leg.state.fl.us, Cc:Sunburstsunburst@eog.myflorida.com On Wed, Oct 23, 2013 at 1:27 PM, Frigo, Victoria (COE) <FRIGOV@miamidade.gov wrote: Mr.Walters, Peryourrequest,yourquestionhasbeenforwardedtotheStateAttorneyGeneralsoffice.
October 28, 2013 Jorge Exposito, Commissioner CITY OF MIAMI BEACH Miami Beach, Florida Subject: City Attorney Jose Smiths Memorandum of Law on Floridas Government -in-theSunshine Law Dear Sir: I congratulate you for making your inquiry into the question as to whether or not Floridas Sunshine Law applies to transactions between city commissioners and city attorneys on the dais at public meetings of the city commission. Your question was posed because I asked the same question of higher authority since it is of great public importance. The whisperings between your good self and the estimable city attorney Jose Smith at the Sept. 11, 2013 commission meeting are merely incidental to the question. I believe that that inaudible transaction and yet another one off camera behind the dais violated at
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least the spirit of the Sunshine Law, but that you and your colleague were innocent of any intent to violate the Sunshine Law due to a tradition that inculcates ignorance. That is not to say that I believe you are innocent of participating in the denial of due process in that travesty conducted by the commission on Sept. 11 when it considered the bids for a contract to manage the tennis centers, and then arbitrarily, capriciously, and unreasonably rejected all bids because the reactionary regime desired to keep possession of public facilities in the hands of the incumbent bidder, the last-named on the list presented by the qualifications committee. As Luigi Facciuto famously said, When wrong is done long enough, wrong seems right. For example, when I pointed out what I perceived to be a conspiracy to defraud the city of building permit fees and its ability to keep the public safety, I heard the refrain, Ever ybody knows that everybody does it, and nobody cares. Mr. Smith taught me that, ultimately, the city and city officials regulate themselves and enjoy Sovereign Impunity for gross negligence, and cannot be held responsible for what is within their discretion. That is, they are self-regulating as if little kings crowned by the city. Similarly, Michael Murawski, Advocate for the Miami Dade County Commission on Ethics and Public Trust, in his June 21, 2007 Memorandum closing out an investigation of Jose Smith and other city officials, most of whom were lawyers, exonerated them from wrongdoing, stating that, first of all, the officials acted with apparent full knowledge, advice and approval of the City Attorneys office and we have generally declined to file complaints in the past in such situations. Now you have the advice of your city attorney and can act accordingly. Lawyers, unlike insurance agents such as you and your colleagues, regulate themselves, purportedly to maintain the nobility and honor of the profession. But that power has two edges, one held to the throat of the public as some members of the profession raises themselves above the principles and laws that they should honor, forging traditions that ignore and even legalize unethical conduct. Now it is due to my presumption of your innocence, if my understanding of the spirit of the Sunshine Law is correct, as well as Mr. Smiths innocence that I asked City Manager Jimmy Morales on Oct. 18, 2013, to improve the indoctrination of board members on the Sunshine Law as required by Miami Beach Code Sec. 2-22 (14), and to include new city lawyers, managers, and commissioners in that introductory indoctrination. The City Clerk provided me, in response to my public record request, a copy of the Sunshine Law package currently given to incoming board members, and it was wholly insufficient, including only the amendment to the law but not the substance of the law and a clear explanation of same. Now, then, I am moved to address Mr. Smiths Memorandum after citing it in full, and to consider all the citations he included to support his view. You will see that that his citations are a
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slew of references slapped together to support his begging of the question and serve as red herrings that do not go to the point. I believe that you will realize from the malicious tenor of the Memorandum that you have inquired of the wrong person, someone whose conduct has been questioned in the matter and whose response is so hostile that it is obviously that he has forgotten that his duty is not to himself and the party with whom he may have violated the Sunshine Law, but to the citys best interest. That city is not merely him and you and the coterie of ruling officials whom he identifies with, but to the community. Furthermore, the question has already been put to higher authorities than the city attorney; therefore, putting the question to him was inutile. I did not submit the question for the reason I gave when putting the question to higher authorities: his extreme hostility towards me for questioning his performance as city attorney would render his opinion inutile. # Jose Smiths Sunshine Law Memorandum and Citations in Support of his Legal Opinion opining that Discussions Between City Attorneys and City Commissioners on the Dais at Public Meetings are not subject to the Sunshine Law. SMITH CITATION: Memorandum on Sunshine Law, City of Miami Beach Attorney Jose Smith to City of Miami Beach Commissioner Jorge Exposito, October 23, 2013. Smiths Memorandum must be cited in full: You have asked me for a legal opinion regarding an e-mail from Rebecca Boyce which included an e-mail exchange from blogger David Arthur Walters and Victoria Frigo, Senior Staff Attorney for the Miami-Dade County Commission on Ethics and Public Trust. I concur completely with Ms. Frigo's conclusion that "the Sunshine Law is not violated when one commissioner speaks to someone who does not serve as a co-commissioner on the same collegiate body." Her opinion is entirely consistent with settled case law, attorney General opinions and the "Government in the Sunshine Manual" Mr. Walters cites in his continued efforts to defame public officials. Simply put, these legal authorities confirm that the Sunshine Law only applies to TWO OR MORE MEMBERS of the same City Commission (or the same public body) when discussing city business. Since I am not a member of the city commission, our conversations (private or not) are not subject to the Sunshine Law. Otherwise, commissioners could never have a private conversation with me or the city manager (i.e. agenda reviews). That would be absurd. While it is true that our "whispering" may not necessarily be subject to the attorney-client privilege, I assure you that the Sunshine Law does not prohibit it and that Mr. Walters is wrong.
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In closing, while blogger Walters is entitled to his own opinion on the tennis RFQ process, he is not entitled to make up law. Sadly, he has chosen to live in a different universe and it is for that reason he is no longer a writer for the Sun Post or any legitimate publication. REBUTTAL: Mr. Smith begs the question asked. It is agreed that a Sunshine Law applies to certain kind of public meeting. A public meeting is defined by the Attorney Generals Manual (and not by the statute) as Mr. Smith hath loosely pronounced. But the question appertains not to the definition of a meeting but to what happens at that meeting when held. It is certainly not illogical or absurd to deduce from the definition the city attorney adheres to that there should be no private or secret meetings of two or more commissioners with city managers and city attorneys or to discuss city business that the commissioners might act on, although he is admitting to that practice in his Memorandum. Mr. Smith believes that I am not entitled to make up the law, although that is what he himself has done, and he apparently believes that his interpretation is authoritative. Reason should hold sway instead of social position or status. His reason is obviously clouded by personal animosity and his logic is fallacious. As a human being, Mr. Smith has my sympathy because he is publicly defaming his estimable self with personal character attacks on others, when he should just answer to the facts and law and be done with it. Dale Carnegie related the story of a man who broadcast to millions of people the public attacks made by someone on his character, so malicious that the attacks served as self-denouncements. Also pertinent here is Mr. Carnegies advice in How to Stop Worry and Start Living, Chapter Twenty, How to Keep from Worrying About Criticism. Remember that unjust criticism is often a disguised compliment. Remember that no one every kicks a dead dog. The more important a dead dog is, the more satisfaction people get in kicking him. Many people get a sense of satisfaction out of denouncing those who are better educated than they are or more successful. Vulgar people take huge delight in the faults and follies of great me. Of course Carnegies oracles, like those rendered in screams by Pythias at Delphi and interpreted by priests, or the interpretations by Chinese sages of the sorting of yarrow stalks, a divination ritual derived from the cracks on the sacred turtles shell heated in the fire, rendered reasonable in the Book of Changes, are ambiguous, so it is best that both sides take it to heart and wonder, Who is the dog, and do I think I am the word dog spelled backwards? Likewise, there is a saying in the Orthodox Jewish bible that, The right hand, Hashem, is become glorious in ko-ach: The right hand, Hashem, hath dashed into pieces the oyev. (Shemot 15:6).
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One must understand the meaning of oyev, the nature of the friend-enemy, that the enemy may be within us all, that to hate the enemy and give him no quarter, to not forgiven him (to open ones hand or let go) may be an act of groundless hatred, or hatred of ones on kind, that may lead to the destruction of that kind. Sometimes an enemy does a man greater service than a friend. It seems that the city attorney has honored me with that designation. Tamerlane let go of his worst enemy when captured so his enemy would live to fight him another day. He allowed the elders of a small tribe to criticism: the rest he had beheaded. It is said that the law is no respecter of persons. Neither should the law disrespect persons. Still, the truth of a proposition, when it cannot rely on immediate empirical proof, may be deemed probable by the testimony of experience if practice results in wisdom on the subject at hand. It is necessary to respond here to the question of the authority. Although it appears that Mr. Smiths use of the argumentum ad hominem fallacy in his attempt to impeach me as witness, as if I were a vicious alien from a different universe, is motivated by his fear that my wisdom is superior to his, an ethical principle moves me to point out that he is, by credentialed formal education in and the licensed practice of the law, success in business, and many years of good service to the community despite his mistakes, far superior to me. I am relatively nobody, an impoverished old man with an elementary education who took up the ancient Trivium at the crossroads. But remember that the Cyclops tribe heard Polyphemus, the one-eyed giant, crying out from his cave, so his ilk came to its opening and asked what was the matter with him; When he answered, Nobody has put my eye out, they retired back to their beds, thinking the poor giant had had a nightmare. This language, these words and opinions of mine are not my property but the property of Man and his Wo. Although this is not the place to dwell at too much length on the details of the city attorneys contumely in his formal legal memorandum, I must say that his aspersions are false. The only true statement that Mr. Smith, whom the esteemed SunPost editor anointed Best City Official 2013 for reasons I cannot divulge without betraying her confidence, is that I have indeed gone my own way: that way began when I left home for the streets of Chicago 55 years ago. I do not charge for the writings that I offer to publications although I have received honorariums from an organ of the Catholic Church. I am not nor never have been employed by Granma or any other publication including the SunPost, although the SunPost and other publications have claimed me as their writer. The importance of knowing the content of the whisperings between Mssrs. Smith and Exposito is made clear by the following response from the private citizen to whom the Memorandum was copied, Rebecca Boyce, President of the Miami Beach Tennis Association:
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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. Thank you. Respectfully, Rebecca Boyce. The fact of the matter was that the only management and maintenance ambiguities, referred to by Mr. Exposito as reason to sneakily throw out all the bids in order to retain the incumbent contractor after conferring with Mr. Smith were in the proposal of the insolvent incumbent contractor, who was forced onto the last of the list after a decade of continuing breaches tolerated and condoned by city officials. # SMITH CITATION: Attorney General Opinion. Number: AGO 74-47, Date: February 13, 1974, Subject: Meetings with city manager and sunshine law REBUTTAL: Smiths citation of this Opinion is irrelevant as it does not appertain to the question but only to individual meetings between city manager and city councilmen. # SMITH CITATION: Attorney General Opinion. Number: AGO 97-61, Date: September 15, 1997, Subject: Sunshine law, board members meeting with board attorney REBUTTAL: Smith citation directly contradicts his argument because the question upon which the AGO is given is, Are communications between a member of the school board or the school superintendent, and the school board attorney, privileged attorney-client communications? The answer is no, they are not privileged, and therefore are subject to the Sunshine Law. # SMITH CITATION: News and Sun-Sentinel Company, etc., et al. (542 So.2d 1354 (Fla.App.4 Dist. 1989) REBUTTAL: Smiths citation of this case does not appertain to the question but addresses whether or not a scheduled discussion between mayor and city employee concerning discipline of employee was a "meeting" for purposes of Sunshine Law; discussion was not between two or more public officials and mayor was not acting for a board or commission. The court held that it was not. #
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SMITH CITATION: Deerfield Beach Publishing v. Mayor of Deerfield (No. 87-2195. District Court of Appeal of Florida, Fourth District. Sept. 7, 1988.) REBUTTAL: Smiths citation is impertinent as this case appertains to a finding that a complaint for the alleged violation of the Sunshine law by a mayor who conferred with other commissioners in a non-public setting must allege by name or sufficient description identity of public official with whom defendant public official has allegedly discussed public decisionmaking process in nonpublic forum without public notice in violation of law. SMITH CITATION: Chapter 286 Florida States (2012) REBUTTAL: Smiths Citation tends to contradict his position by way of interpretative infere nce from the statute. Chapter 286 does not explicitly address the question as to whether or not discussions between city commissioners and those city attorneys, who may, according to the city charter, make recommendations on legislation, are subject to the Sunshine Law. However, the statute does refer to private meetings held by a commission with city attorneys to discuss litigation, and provides that those meetings are indeed subject to the Sunshine Law, and: The entire session shall be recorded by a certified court reporter. The rep orter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting. The record becomes public on conclusion of the litigation. Notably, the Miami-Dade County Ethics Commission had some difficulty obtaining just such a record (transcripts of meetings held in July 2004) from Smiths office in the case of Leroy Griffith and Club Madonnas suit against city attorneys and commissioners at the time, including Commissioner Jose Smith, for an alleged attempt to extort $30,000 in legal fees from Leroy Griffith so he could get a fair hearing to obtain a liquor license. The COE Advocate cited Chapter 286 as above to obtain the transcriptionthe copy I have shows there may have been discussions off the record. In that matter, former city attorney Murray Dubbin had denied there was any linkage between affording Griffith due process and paying the $30,000. However, city attorney Gary Held told the COE that there was a memorandum to that effect, but refused to produce it, citing attorney-client privilege. Smith corroborated Helds statement, telling COE investigators that yes, payment of Mrs. Grosss legal fees was a point of negotiation. He later blamed Griffith for making the linkage. COE Advocate found impropriety in the behavior of several officials but recommended that the case not be pursued because the COE traditionally does pursue complaints against officials who act on the advice of city attorneys. The advice of attorneys in the instant case was to commissioners who were attorneys themselves. (City of Miami Beach/Club Madonna, Report and Close-Out Memorandum, June 21, 2007) The COE itself took up the issue and sat on the fence 2-2, failing therefore to find probable cause of a
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violation (Case C-08-16), deciding, however, that the dismissal should include a Letter of Instruction to forward other to avoid such an appearance of impropriety. The Citys position was that it was being blackmailed by Griffith and was therefore moved to respond as it did. Leroy Griffith has recently renewed his complaints in state court, now removed to federal court. Smith publicly called the complaints garbage. The July 2004 transcripts of the executive session of city attorneys and city commissioners include the statements of Smith to city commissioners. Smith might argue that those statements were made to several commissioners at once, so was information shared between the commissioners, but that the whisperings at the Sept. 11, 2013, commission meeting were between him and a single commissioner, therefore neither he nor the commissioner, both local public officials under the statute, were in violation of the Sunshine Law. I would disagree with that interpretation, but suggest it here in fairness since he neglected to do so. Sec. 286.0115 appertaining to access to local public officials states that, local public official means any elected or appointed public official holding a county or municipal office who recommends or takes quasijudicial action as a member of a board or commission. Article III of the City of Miami Beach Charter, Sec. 3.011 (e) states that the City Attorney shall recommend to the City Commission for adoption, such measures as he/she may deem necessary or expedient. Indeed, the record shows that Smith has made numerous recommendations on legislative issues. However, he took exception to that in an email to me in response to a statement I had made to the City Clerk, that a city attorney may have recommended a course action in which he had personal interest: The City Attorney does not advise commis sioners on how to vote on an ordinance, he said. The City Attorneys ONLY interest is the best interest of the city. The City Attorney would recuse himself on ANY matter affecting his private interests. You, sir, are delusional! So, on the one hand, he claimed he does not advise commissioners; on the other hand, he says he would have to recuse himself instead of advising them on matters affecting his interest. # SMITH CITATION: a single page of A.G.s Manual: Part I, Sec. A. What is the Scope of the Sunshine Law? REBUTTAL: The 2012 Manual states: Floridas Government in the Sunshine Law, commonly referred to as the Sunshine Law, provides a right of access to governmental proceedings of public boards or commissions at both the state and local levels. The law is equally applicable to elected and appointed boards, and applies to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action.
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Emphasis is added to the specific authority that Victoria Frigo, senior attorney for the Ethics Commission, cites as her sole authority, an opinionative clause that does not appear in the governing statute. The clause appertains to what constitutes a meeting subject to Sunshine Law, but it does not exempt the discussions of city attorneys sitting on the dais at the meeting from the Sunshine Law. Smith fails to cite a clause in the same manual that declares, In the absence of a legislative exemption, discussions between a public board and its attorney are subject to s. 286.011, F.S. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (s. 90.502, F.S., providing for the confidentiality of attorneyclient communications under the Florida Evidence Code, does not create an exemption for attorneyclient communications at public meetings; application of the Sunshine Law to such discussions does not usurp Supreme Courts constitutional authority to regulate the practice of law, nor is it at odds with Florida Bar rules providing for attorneyclient confidentiality). Cf. s. 90.502(6), F.S., stating that a discussion or activity that is not a meeting for purposes of s. 286.011, F.S., shall not be construed to waive the attorneyclient privilege. And see Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), stating that all decisions taken by legal counsel to a public board need not be made or approved by the board; thus, the decision to appeal made by legal counsel after private discussions with the individual members of the board did not violate s. 286.011, F.S. There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney. (2012 A.G. Sunshine Manual Page 24, Legal Matters). In Neu v Miami Herald, the Supreme Court of Florida agreed to declare on the issue because it was of great public importance: Because of the continuing significance of the issue, the cou rt certified the following question of great public importance: Whether the Sunshine Law applies to meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party. State ex rel. Reno, 434 So.2d at 1036. We answer the question affirmatively and approve the decision of the district court. It stands to reason that, where litigation meetings are held between legislative bodies and government attorneys, the law requiring all the transactions including the city attorneys statements to be recorded, that a litigation meeting is a subspecies of a regular meeting, and that the same principle is to be applied to those regular meetings. # SMITH CITATION: Constitution of the State of Florida, Article I, Section 24, Access to Public Records and Meetings. REBUTTAL: The Constitution section cited by Smith does not exempt public access to the content of whisperings between city attorneys and city commissioners on the dais a public meetings. The clause simply mandates public access so that what transpires in the meetings may
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be known. b) All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public. ## Submitted With All Due Respect, DAVID ARTHUR WALTERS Nobody
CC: TO CITY CLERK RAFAEL GRANADO Please place this response to Mr. Smiths Legal Memorandum on the Public Record as a Letter to the Commission
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October 29, 2013 Katherine Fernandez Rundle, Esq. STATE ATTORNEY Miami-Dade State Attorneys Office Miami, Florida Subject: Violation of Floridas Government -in-the Sunshine Law Madame: Attached you will find a snapshot of public video evidence that City Attorney Jose Smith and City Commission Jorge Exposito of the City of Miami Beach violated the Sunshine Law at a public meeting of the City Commission held on Sept. 11, 2013, by whispering to one another on the dais during the meeting out of earshot of the other commissioners and the public. It is my information and belief that Mr. Smith was advising Mr. Exposito on an apparently unlawful strategy to deny a highly qualified bidder of due process in the procurement of a contract for the management of the cit ys tennis facilities so that it could be, in effect, arbitrarily, unreasonably and capriciously awarded to the insolvent company currently in possession of the facilities. Commission Michael Gngora, Esq., defined the strategy, taken and approved by the majority after Mr. Exposito made a crucial but specious argument for tossing out all the bids so that the unqualified company could be retained, as sneaky. Attached is my Travesty report in which you will find further context. It is crystal clear from Chapter 286 of the Florida Statutes, common law decisions, and Attorney General opinions that 1) the commission hearing was a public hearing subject to the Sunshine Law, 2) the city attorney is a local public official, who under the city charter can make recommendations on legislation, and to whom the Sunshine Law applies, 3) that the city and the city attorney did not have the benefit of attorney-client privilege during the public meeting, therefore the other commissioners and the public were entitled to hear or to read a verbatim transcript of their conversation in order to have sufficient information to hold the officials accountable for their performance. I am standing by to report on whatever action you take if any on this apparent violation of law. Very truly yours, David Arthur Walter Independent Journalist miamimirror@gmail.com

30 October 2013 Jorge Exposito, Commissioner CITY OF MIAMI BEACH Honorable Commissioner Exposito: Happy Halloween! I have edited my Response to the City Attorneys Memorandum on Sunshine Law considerably, and here present the final revision to you for your perusal, and to the editor of the citys Letters to Commissioners webpage, Rafael Granado, for posting to that webpage. Prior to reading my Response, please be aware that I have an extra-extra dry sense of humor due to being on the wagon for ten years before I disembarked again in South Beach, and from listening to Jack Benny radio programs before I knew there was such a thing as television. As I said before, I was reluctant to present what was probably a violation of the Sunshine Law by you and the estimable City Attorney to the State Attorney, because I thought any violation was probably innocent, so a matter of opinion on point should be obtained as an instruction to all persons concerned with the Sunshine Law. However, since the Opinions counsel for the Attorney General has advised me to submit the Question to the State Attorney, and in consideration of the Rambo lawyer element of the City Attorneys Memorandum, I have now submitted the Question to the State Attorney. Please let me assure you that City Attorney Jose Smith could be my good friend in a day if he so desires, I have already said that I would be glad to be his propagandist if his spouse would allow him to run for commissioner or mayor. As our relationship now stands, he has announced to the City Clerk that he is preparing to slap me with a SLAPP suit, and asked the clerk to compile any records he can find about me for retaliation.
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Before he proceeds, he is welcome to visit my Dostoyevskian hovelsee Notes from Underground for an illustration where he shall discover that I worship the spirit to the exclusion of the Golden Bull but for a few sticks of furniture retrieved from South Beach alleys before the Great Recession, and the contribution of a monitor from an admirer and a computer from a Nigerian engineer. Mr. Smith has on two previous occasions derogated me for being unemployed, and has associated me with someone he accused of being a criminal. In fact I am a retired old man with a meager pension and with one foot in the grave, living my Golden Years free from the worship of the Golden Bull. That is not to say that I would not appreciate receiving a golden grant from a patron for high technology tools to pursue my idealsthe truth about the Golden Bull story is that the sin was not greed for gold but obeisance to an opposition government. Mr. Smith can have all my furniture by default if I am unable to find a public interest law firm to realize the investigative reporters dream of court-supported discovery into the workings of a government merely opined about previously from limited access to records. In Mr. Smiths favor, I have now compared him to one of the finest attorneys in Florida, and myself to a bank robber. I am including a link to music that you may enjoy as accompaniment to my Response, or alone if you find the Response boring or offensive. It is the soundtrack from the musical EVITA, in which the narrative character chose to defame Eva Peron throughout. Of course her enemies hated her, many simply It was a characteristic of because she was a powerful female, and for that reason she was also exalted in stature forever above her equal, Juan Peron. was most subjugated. As a feminist, Eva Peron insisted that sex should have nothing to do with political standing. I insist that who I am, if anyone can figure that out what an I is, should have nothing to do with opinions of law. medieval romantics to elevate the woman over the man at the very time she
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I also include a link below to this Report, stored at Scribd in the Cloud, in the event your webmaster fears that opening a PDF document from me will result in a Boo. Sincerely, David Arthur Walters CC: Pamela Bondi Rebecca Boyce Joe Centorino Victoria Frigo Rafael Granado Michael Murawski Katherine Fernandez Rundle Rick Scott Jose Smith Kim Stark EVITA SOUNDTRACK http://www.youtube.com/watch?v=IVyU_gdCnek&list=PLC2977BCE5BC6244B
REPORT http://www.scribd.com/doc/179611825/Response-to-Miami-Beach-City-AttorneyLegal-Memo-on-Sunshine-Law
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ViolationofFloridaGovernmentintheSunshineLawreporttoSAO
October29,2013 Florida Attorney General Pam Bondi received your email and asked that I respond. In Attorney General Opinion 71159, this office advised that discussions of public business which are audible only to a "select few" who are at the table with the board members may violate the "openness" requirement of the Government in the Sunshine Law, section 286.011, Florida Statutes. Compare Citizens for Sunshine, Inc. v. City of Sarasota, No. 2010CA4387NC (Fla. 12th Cir. Ct. February 27, 2012) (two members of a civil service board violated the Sunshine Law when they held a private discussion concerning a pending employment appeal during a recess of a board meeting). Ultimately, 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. Thank you for contacting Attorney General Bondi's Office. LagranSaunders AssistantAttorneyGeneral DavidArthurWalters<davidarthurwalters@gmail.com>Tue,Oct29,2013at10:32AM To:pambondi<pam.bondi@myfloridalegal.com>,GovernorRickScott <rick.scott@eog.myflorida.com>,DOSS.VIRLINDIA@leg.state.fl.us DearLagranSaunders: Thank you very much for your service and the fascinating citation. I have heeded your advice and forward the matter to State Attorney Katherine Fernandez Rundle for handling. I had avoided do that because it appeared to me there was nothing specifically on point, therefore I askedGovernorScotttoaskforaformalAGO. I understand that the city attorney is planning to retaliate against me for asking the question; therefore,ifthereisanythingyourofficecandotospeeduptheStateAttorney'sreview. AttachedheretoaretheattachmentssenttotheSAO.Yours,
DavidArthurWalters From:DavidArthurWaltersmiamimirror@gmail.com Date:Tue,Oct29,2013at10:11AM Subject:ViolationofFloridaGovernmentintheSunshineLawreporttoSAO To:CommunityOutreach@miamisao.comandKatherineFernandezRundle@miamisao.com October29,2013 KatherineFernandezRundle,Esq. STATEATTORNEY MiamiDadeStateAttorneysOffice Miami,Florida Subject:ViolationofFloridasGovernmentintheSunshineLaw Madame: Attached you will find a snapshot of public video evidence that City Attorney Jose Smith and City Commission Jorge Exposito of the City of Miami Beach violated the Sunshine Law at a publicmeetingoftheCityCommissionheldonSept.11,2013,bywhisperingtooneanotheron thedaisduringthemeetingoutofearshotoftheothercommissionersandthepublic. It is my information and belief that Mr. Smith was advising Mr. Exposito on an apparently unlawful strategy to deny a highly qualified bidder of due process in the procurement of a contract for the management of the citys tennis facilities so that it could be, in effect, arbitrarily, unreasonably and capriciously awarded to the insolvent company currently in possessionofthefacilities. Commission Michael Gngora, Esq., defined the strategy, taken and approved by the majority after Mr. Exposito made a crucial but specious argument for tossing out all the bids so that the unqualifiedcompanycouldberetained,assneaky. AttachedismyTravestyreportinwhichyouwillfindfurthercontext. ItiscrystalclearfromChapter286oftheFloridaStatutes,commonlawdecisions,andAttorney Generalopinionsthat1)thecommissionhearingwasapublichearingsubjecttotheSunshine Law, 2) the city attorney is a local public official, who under the city charter can make recommendations on legislation, and to whom the Sunshine Law applies, 3) that the city and
thecityattorneydidnothavethebenefitofattorneyclientprivilegeduringthepublicmeeting, therefore the other commissioners and the public were entitled to hear or to read a verbatim transcript of their conversation in order to have sufficient information to hold the officials accountablefortheirperformance. Iamstandingbytoreportonwhateveractionyoutakeifanyonthisapparentviolationoflaw. Verytrulyyours, DavidArthurWalters IndependentJournalist miamimirror@gmail.com Attachments: Imageofcityattorneyandcommissionerwhisper TravestyReduxMiamiBeach AveriguarConfidentialReporttoLEOwith2012TaxReturn ThislettertoMadameRundle 4attachments SmithandExpositoConfering.jpg101K 20131029WalterstoRundlereSmith&ExpositoViolation.pdf258K TravestyReduxMiamiBeach.pdf6668K AveriguarwithTaxReturn.pdf2919K Mr.SaundersrepliedthattheAttorneyGeneralOfficecannotinterfereintheStateAttorney process.

Are Attorneys Exempt From Florida Sunshine Law

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Are Attorneys Exempt From Florida Sunshine Law

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