MIAMI MIRROR TRUE REFLECTIONS

ISIS

ETHICSCOMMISSIONDEADWRONGONSUNSHINEANDLOBBYINGLAW

September 15, 2015
by David Arthur Walters
MIAMI MIRROR
On November 5, 2013, I submitted a Press Inquiry to Miami-Dade Ethics Commission Advocate
Michael Murawski as to whether or not City of Miami Beach Commissioner Deede Weithorn
had a conflict of interest as the accountant for the citys tennis facility contractor, Green Square,
Inc., a Subchapter S corporation in which her brother-in-law had a one-third interest, which had
been insolvent for some time according to one of its tax returns, and which had failed to provide
its annual audited statements as required by the contract with the city.
I quoted Section 112.313(7)(a) of the Florida Statutes, providing that No public officer or
employee of an agency shall have or hold any employment or contractual relationship with any
business entity or any agency which is subject to the regulation of, or is doing business with, an
agency of which he or she is an officer or employee. Since then, I was informed that
Commissioner Weithorns husband owned a company that manages the contractors website.
As the reader shall soon see, I had asked what is known by experts as a stupid question.
However, the Ethics Commission staffs response to it demonstrates either its ignorance of the
spirit of Floridas lobbying and transparency laws or a bias against their enforcement when the
violations were committed by the old regime that ran the City of Miami Beach.
On September 9, 2014, I reiterated my request to Nelson Bellido, Chairman of the Miami-Dade
Commission on Ethics and Public Trust, because Mr. Murawski did not bother to respond to my
press inquiry, and nothing requires him to do so.
On September 12, 2014, I received what appeared to be an oblique reply to my request from J oe
Centorino, director of the COEs investigative staff, formerly a local assistant state attorney in
charge of public corruption investigations. Director Centorino is considered to be an expert on
the states transparency law, Floridas progressive Government-In-The-Sunshine-Act. The state
MIAMI MIRROR TRUE REFLECTIONS

attorneys office prosecutes criminal violations of Floridas transparency law, the, while the
Ethics Commissions purported interest in ethical government causes it to investigate suspected
violations when it feels like doing so. COE staff had recently summarily dismissed my inquiry
into an obvious and pervasive violation of Sunshine law by government attorneys, and State
Attorney Kathy Rundles office stonewalled me on the issue, although J oe Centorino himself had
informed me on May 3, 2012, that, Because openness and honesty in government is entrenched
in the Citizens Bill of Rights, over which the COE has jurisdiction, and because the COE
provides training to municipal governments on these laws, we have taken a broad view of our
role and have responded to complaints about violations of the Sunshine Law and Public Records
Law.
Director Centorinos response to my September 12 letter to the COE chairman came in the form
of an email without a subject line or message, to which was attached a copy of the Report of
Investigation by COE Investigator Karl Ross in the matter of Boucher Brothers Miami Beach
LLC, a case closed J une 5, 2012, appertaining to allegations of Sunshine Law violations in
respect to a City of Miami Beach commission Retreat at the W Hotel, where a discussion was
had, without particular advance notice to the public, about an eventual resolution of the city
commission to extend Boucher Brothers beach concessions contract with the city on a no-bid
basis. City Manager J orge Gonzalez had been lobbied by the contractor for the no-bid extension,
and he in turn submitted a report to the commission and inquired as to its will in the matter.
That ethics investigation was prompted by a tip received, from a source not identified in the
investigative report. The tipster was probably a commissioner, most likely opposition
commissioner Ed Tobin, Esq., who determined to overturn the regime whose city manager at the
time was J orge Gonzalez, an objective that would eventually be realized with the forced
retirement of Mr. Gonzalez on a corruption pretext, the shoeing-in of political insider and
homeboy J immy Morales, Esq., as city manager, and the recruitment of wealthy businessman
Philip Levine as mayoral candidate. Mr. Levine invested well over a million dollars of his own
money to support allied commission candidates and to win the mayors seat himself, giving his
faction a majority on the commission, and endowing him a virtually strong mayor position in a
weak mayor system while the honeymoon lasts.
City Clerk Robert Parcher told the ethics investigator that members of the public usually do not
show up at so-called commission retreats, held normally as general strategy sessions.
What must be understood in the context of government transparency law is that sometimes
commissioners use the general strategy sessions to sponsor special legislation favoring particular
customers.
Two civilians did show up for the May 20-21, 2011 Retreat at the W Hotel, one being venerable
gadfly Stanley Shapiro, the other being the inestimable moralistic sociologist and anti-noise
champion, Morris Doctor Sunshine. Although no agenda was published, the honorable doctor,
MIAMI MIRROR TRUE REFLECTIONS

although hearing impaired, may have gotten wind that noise would be discussed at the Retreat,
or, that commissioner Michael Gongora would try yet again to get Club Madonna reconsidered
for a liquor license, may heaven forbidDr. Sunshine was gravely concerned with the
decadence that would obtain if liquor were served around fully nude women at Club Madonna.
1

(See Endnote)
Besides the Sunshine Law issue, the ethics investigators Report addressed whether or not
Boucher Brothers should have registered as a lobbyist before lobbying the City Manager J orge
Gonzalez, and it also touched on the possibility that Commissioner Deede Weithorn, a certified
public accountant, may have had an unethical conflict of interest because she worked for the
accounting firm that served Boucher Brothers.
The Report stated that, It should be noted that since Commissioner Weithorn is not a principal
in her accounting firm she is not required to abstain from voting or otherwise participating on
Boucher's items, though it would appear that she did so in an abundance of caution.
It appeared to me that the director meant to imply, by sending me the Boucher case, that since
Ms. Weithorn was allegedly an employee and not a principal or profit sharing member of the
accounting firm that served the city contractor, Green Square, she herself had no direct
contractual relationship with Green Square as required by the city and county code defining
unethical conduct. So the fact that she may have been earning money indirectly off the
accounting work for a city contractor, and knew that the contractor, in which her brother-in-law
had a third interest, was in breach of the contractual provision to provide annual audited
statements, was ethical by strict legal definition no matter how unethical it might seem.
Section Sec. 2-11.1 of Miami-Dade Countys Conflict of Interest and Code of Ethics Ordinance
clause (a) provides that it applies to municipalities, and clause (d) states, No personshall enter
into any contract or transact any business through a firm, corporation, partnership or business
entity in which he or any member of his immediate family has a controlling financial interest,
direct or indirect, with Miami-Dade County or any person or agency acting for Miami-Dade
County. Additionally, no person included in the term defined in Subsection (b)(1)
[commissioners] shall vote on or participate in any way in any matter presented to the Board of
County Commissioners if said person has any of the following relationships with any of the
persons or entities which would be or might be directly or indirectly affected by any action of the
Board of County Commissioners: (i) officer, director, partner, of counsel, consultant, employee,
fiduciary or beneficiary; or(ii) stockholder, bondholder, debtor, or creditor, if in any instance the
transaction or matter would affect the person defined in Subsection (b)(1) [commissioners] in a
manner distinct from the manner in which it would affect the public generally.
Ms. Weithorns brother-in-law did not have a controlling interest in Green Square. In respect to
voting, she recused herself from voting in matters affecting Green Square, while saying that,
MIAMI MIRROR TRUE REFLECTIONS

according to the Ethics Commission, she did not have to do so, which does not seem to be the
case under the county ordinance if she somehow profited by it.
As for the state statute governing the conduct of public officials, which seems to apply to
municipal officers, she was not directly employed by Green Square nor did she enter into a
contract with it as an accountant if she was merely an employee of the accounting firm. That she
or her relatives may have profited by virtue of her employment with the accounting firm that
contracted with the public contractor does not seem to be relevant to the ethics codes that
prohibit conflicts of interest in making legislative decisions. In any event, she had recused herself
from voting. Whether she had a conflict between her duties as an accountant and as a
commissioner, say, to reveal the financial embarrassment of Green Square is another question.
As for her professional relationship with Boucher Brothers, the ethics investigator apparently did
not require documentation proving Weithorn was not a principal i.e. a partner in the accounting
firm. Unsworn statements were made to the investigator that she had handled the Boucher
account before she became commissioner in 2007, and took the account with her when she
changed accounting firms, but someone else in the firm was assigned to handle it.
She evidently did participate in a discussion about renewing the Boucher Brothers contract on a
no-bid basis at a meeting held during a May 2011 Retreat for elected officials and senior staff at
the W Hotel in South Beach, where it was decided that the commission would waive the bidding
process and renew the incumbents contract. Apparently the Retreat served as a virtual first
reading of a resolution to renew the incumbents contract, and staff was assigned to work out
the details for the second reading, at which time the commission adopted it 6-0 on December 14,
2011.
Oddly, the portion of her participation noted by the clerk has her saying that Boucher Brothers
should pay for any cost of putting the contract out to bid: If the final decision is to negotiate a
new agreement as a savings to the City that whatever it would cost to prepare and process a bid
that that cost must be provided, at a minimum, by the current vendor, noted the clerk.
A waiver of the bidding process requires adoption by a supermajority of five commissioners, but
they may not waive unless they have a formal recommendation to do so from the city manager.
From what we can glean of the report and the documents it refers to, the city manager was
informative but noncommittal as to the waiver, leaving it up to the commission to do so. But the
commission could not legally waive bidding without his prior recommendation.

The ethics investigators report reads, Gonzalez asked commissioners if the concession program
should be bid, or negotiate a renewal with the current provider the Boucher Brothers. The
investigator did not quote the rest of the clerks afteraction report: He (Gonzalez) added that
either way new criteria will be added such as having non-motorized water sports in North Beach,
clean more of the beachfront, an important item is to clean the bathrooms and have a bathroom
attendant. Explore charging a fee for the use of the bathrooms and cooking on the beach using
solar power. If a bid, include a key man provision. Installation of lockers is highly desirable.
MIAMI MIRROR TRUE REFLECTIONS

Boucher Brothers has recently provided locker trailers on the beach, which has been plagued by
thievery. The public bathrooms are so filthy, in part because they are occupied by inconsiderate
vagrants and locals, that Boucher Brothers employees on the beach advise tourists to use hotel
facilities.

So here we see the city manager leaving the waiver up to the commission. In retrospect this
supports the minority view that Mr. Gonzalez survived in his job so long because he did the
commissioners bidding, for which he would eventually take the fall when things went south and
he bucked their will. Further research is required to ascertain whether the city manager was
ordered to make and did make the necessary waiver recommendation.

Commissioner Weithorn told the ethics investigator that she did not remember participating in
the discussion about the Boucher Brothers contract, but she actually did participate in the
discussion at the W Hotel Retreat, at least according to the attending clerks afteraction report. In
any event, she recused herself from voting on the resolution that renewed the contract.
Naturally her accounting firm might have gained by her participation leading to the legislation if
her contribution to the discourse in fact helped influenced the commission to waive the bidding
process so that another bidder would not be chosen, but whether or not that would benefit her in
her relationship with her employer is a matter for speculation although probable. If she stood to
benefit, it would seem that her participation in the legislative discussions would be contrary to
the ethics code.
In fine, the investigators finding in respect to Commissioner Weithorn seems to be correct as far
as the code goes, so let us turn to the usual suspect in controversies over contracting, City
Manager J orge Gonzalez, who believed certain commissioners were the corrupt ones, and who
eventually would be forced to resign after 14 years on the job, he says because he finally bucked
the commissioners, only to be hired by Bal Harbour shortly thereafter as its city manager.
Boucher Brothers was actively lobbying Mr. Gonzalez for a no-bid renewal, but its
representatives did not register as lobbyists. That sort of lobbying by incumbents had been
customer under his tenure as the unelected city boss. Luigi Facciuto, my jazz dance master of
old, used to say, When you do something wrong long enough, wrong feels right.
The city manager told the investigator that he did not feel he had been improperly lobbied. The
investigator and ethics attorneys sympathized with him hence the conclusion:
The investigation also found that while representatives of Boucher Brothers did not register to
lobby in connection with the 1O-year contract extension, no such disclosure was required since
Boucher was the incumbent vendor and, as such, it would not be required to disclose such
communication. This was the opinion of COE legal staff as well as that of City Manager
Gonzalez, who described such requests as commonplace among incumbent vendors. Gonzalez
MIAMI MIRROR TRUE REFLECTIONS

said he did not feel that he had been improperly lobbied by Boucher Brothers with respect to the
contract extension. He did not cite any court rulings.
It is that sort of conclusive opinionating without further explanation that has damaged the
reputation of the Ethics Commission, which has been dubbed either rightly or wrongly by its
Miami Beach detractors as The Unethical Commission of Public Distrust.
The lobbying code does not provide that incumbent contractors do not have to register as
lobbyists because they already have an advantaged, probably cordial relationship in comparison
to competitors who come in cold. Here is the citys definition of lobbyist:
Lobbyist means all persons employed or retained, whether paid or not, by a principal who seeks
to encourage the passage, defeat or modification of any ordinance, resolution, action or decision
of any commissioner; any action, decision, recommendation of the city manager or any city
board or committee; or any action, decision or recommendation of any city personnel defined in
any manner in this section, during the time period of the entire decision-making process on such
action, decision or recommendation that foreseeably will be heard or reviewed by the city
commission, or a city board or committee. The term specifically includes the principal as well as
any employee engaged in lobbying activities. (Sec. 2-481. Definitions)
The investigators respect for traditions flouting the code reminds me of a pronouncement of
Advocate Michael Murawski in the notorious Club Madonna Affair involving the city officials
effort to wrest $30,000 out of club owner Leroy Griffith in return for consideration of his liquor
license application (see Endnote). Mr. Murawski said that the evidence in that case suggested
that the City Attorney allowed the City Commission to push their collegial bonds over the
ethical line. Most of the commissioners involved in the scandal were lawyers. Yet Mr.
Murawski was apparently moved by his collegiate feelings as an attorney to dismiss the matter
predominantly involving fellow attorneys, first of all, because 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.
Finally, let us take up the allegation that Floridas Sunshine Act was violated when the Retreat
was held at the W Hotel. It was in fact violated, which is clear as the light of day when the Sun
shines on the context.
The investigators Report states that the public notice published in the Miami Herald did not
mention any of matters to be discussed: It should be noted that none of these items - beach
concessions, the MCM settlement, Club Madonna, red light cameras, to name a few - were
specifically referenced in the public notice published in the Herald or were cited in a letter dated
May 16 from City Manager J orge Gonzalez to the city commissioners (LTC #118-2011) that
outlined the "agenda" for the two-day retreat. The letter merely stated that at the conclusion of
each day's "interactive exercises" there would be a "discussion of ongoing policy items."
MIAMI MIRROR TRUE REFLECTIONS

No problem, he concluded, because, Under state law, an agenda does not need to be included as
part of a meeting notice.
His statement should be qualified. Miami-Dade County and the City of Miami Beach have a
Citizens Bill of Rights with identical clauses on the subject. People have a right to be notified of
the nature of hearings to be held, and copies of ordinances to be considered must be delivered to
them at a reasonable time in advance of the hearings.
Sec. 286.0114 (2) of the Florida Statutes provides that Members of the public shall be given a
reasonable opportunity to be heard on a proposition before a board or commission. The
opportunity to be heard need not occur at the same meeting at which the board or commission
takes official action on the proposition if the opportunity occurs at a meeting that is during the
decision making process and is within reasonable proximity in time before the meeting at which
the board or commission takes the official action.
A reasonable opportunity entails sufficient advance notice to prepare for a response to a
proposal. The Attorney Generals Government-In-The-Sunshine Manual provides this
discussion:
Does the Sunshine Law require that an agenda be made available prior to board meetings
or restrict the board from taking action on matters not on the agenda? The Sunshine Law
does not mandate that an agency provide notice of each item to be discussed via a
published agenda although the Attorney Generals Office has recommended the
publication of an agenda, if available. The courts have rejected such a requirement
because it could effectively preclude access to meetings by members of the general
public who wish to bring specific issues before a governmental body. See Hough v.
Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973); and Yarbrough v. Young, 462 So. 2d
515 (Fla. 1st DCA 1985) (posted agenda unnecessary and public body not required to
postpone meeting due to inaccurate press report which was not part of the public bodys
official notice efforts).
Thus, the Sunshine Law does not require boards to consider only those matters on a
published agenda. [W]hether to impose a requirement that restricts every relevant
commission or board from considering matters not on an agenda is a policy decision to be
made by the legislature. Law and Information Services, Inc. v. City of Riviera Beach,
670 So. 2d 1014, 1016 (Fla. 4th DCA 1996). And see Grapski v. City of Alachua, 31 So.
3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (Sunshine Law
does not prohibit use of consent agenda procedure).
Even though the Sunshine Law does not prohibit a board from adding topics to the
agenda of a regularly noticed meeting, the Attorney Generals Office has advised boards
to postpone formal action on any added items that are controversial. See AGO 03-53,
stating that [i]n the spirit of the Sunshine Law, the city commission should be sensitive
to the communitys concerns that it be allowed advance notice and, therefore, meaningful
participation on controversial issues coming before the commission.
MIAMI MIRROR TRUE REFLECTIONS

While the Sunshine Law requires notice of meetings, not of the individual items which
may be considered at that meeting, other statutes, codes or ordinances may impose such a
requirement and agencies subject to those provisions must follow them
The Manual is the Attorney Generals interpretation of the Sunshine Act and not the law itself.
The interpretation, which the legislative revision council should consider well, should be that,
yes, people should know in advance what matters will be considered at a hearing when that is
known, so the items that are known should be specified in advance, but that specification will not
preclude other matters to be raised extemporaneously at the hearing.
The public did have an opportunity to be heard at the regular commission meeting held on
December 14, 2011, upon which the vote was taken to renew the Boucher Brothers contract, but
was the opportunity reasonable? Was a transcript of everything said at the first meeting, the
irregular meeting held at the W Hotel, published in advance? Were influences brought to bear
leading to a foregone conclusion they would object to if those influences were known?
It is clear to me that certain commissioners intended to waive bidding on the beach concession
and to renew the contract with Boucher Brothers, and to arrive at this foregone conclusion at the
Retreat at the W Hotel with little or no public awareness by burying it under a bushel basket of
general matters discussed, such as: bond ratings; managing by objectives; monitoring building
inspectors; enforcing speeding laws; scholarship programs; dealing with panhandling and
homelessness; cleanliness of waterways and canals; transportation; bringing knowledge-based
business to the beach; fringe benefits are running over 50%; inadequate public relations; fighting
terrorism; citys health insurance the budget; convention center development; parking lots and
valets; improving blighted Washington Avenue with increased police presence; enforcement of
noise ordinances; senior level vacancies; red light cameras; flooding; bus service for seniors;
forget Club Madonna; oh, by the way, since no one is around, lets decide to renew the Boucher
Brothers contract without a bid. After all, only Boucher Brothers is big enough to handle the beach
contract since we will not let anyone else get bigger by having it. Have staff get the contract ready, and
well slip the resolution over on the public at a regular public meeting.
In my opinion, the spirit of the Government-In-The-Sunshine Act was violated in respect to the
first meeting, and that spirit is revealed by the black letter of the law.
Wherefore this unorthodox fatwa overturns the opinions of Ethics Commission Investigator that
the Sunshine Act was not violated, and that lobbyists for incumbent contractors are not required
to register as such. The ethics investigators conclusion that there was no illegal conflict of
interest on the part of Deede Weithorn is affirmed for lack of probable cause to believe
otherwise.
##

MIAMI MIRROR TRUE REFLECTIONS

ENDNOTE

1
Commissioner Gongora had already tried to assist club owner Leroy Griffith with the licensing
issue at a Commission Retreat held at the Eden Roc Hotel the previous year, on April 30 and
May 1, 2010, with Matti Bower, Deede Weithorn, and J ose Smith attending among others. At
that time he asked if there were any interest in revisiting the Club Madonna issue, but there was
no interest, not since Griffith sued the wife of a member of The Family, J ane Gross, the spouse
of former Commissioner Saul Gross, for libel and slander.
Mr. Griffith, dissatisfied with the results he had after contributing to Mr. Gongoras campaign,
filed a complaint with the Ethics Commission, pointing out that the recipient of his political
largess had not reported the contributions. The Ethics Commission fined Gongora $2,000 in
2011 for failing to report the $3,000 in contributions from Griffith in 2009.
And, on March 3, 2011, Mr. Griffith filed a bar complaint against Mr. Gongora, regarding an
alleged discussion held at a J uly 12, 2010, luncheon: Michael Gongora, Esq. ("Gongora"), City
Commissioner, Miami Beach, conspired to extort me, Leroy Griffith, owner of Club Madonna,
into hiring a well-known lobbyist in order to hear an issue Gongora had been promising me for
seven months that he would present to the full City of Miami Beach commission. If I did not hire
this lobbyist, Randy Milliard, Gongora would be effectively barring me from appearing before
the commission to present a proposed amendment to an ordinance that has been the subject of
controversy since 2004. The Florida Bar took the word of Mr. Gongoras lawyer that the event
did not occur despite two sworn statements that it did happen.
I attempted to have the Ethics Commission review the matter. On March 27, 2012, Director
Centorino responded with, Issues such as extortion and sunshine law violations would
ordinarily be investigated by the State Attorney. However, he kindly referred the file to COE
Advocate Michael Murawski, Esq. who refused to open an investigation to at least obtain a
sworn statement from Mr. Gongora that he did demand a quid pro quo for getting Club
Madonnas license issue reconsidered. That way, if there were evidence to the contrary, and
immunity granted from prosecution under the wiretap law if that evidence existed, perjury
charges could be pursued.
Now Mayor Matti Bower asked the commission sitting at the May 2011 Retreat at the W Hotel if
there were any interest in discussing Club Madonna. No interested was indicated.
Commissioners with a long memory of how a commissioners wife was sued by Mr. Griffith for
defamation were apparently still opposed to giving Mr. Griffith another shot at a liquor license.
Deede Weithorn also tried to assist Mr. Griffith, broaching the issue with a March 23, 2012,
Memorandum urging that it be referred to the Land Use Commission for the consideration of a
one-year trial period for serving liquor. However, she withdrew the agenda item at the April 11
Commission meeting.
MIAMI MIRROR TRUE REFLECTIONS

Mr. Griffith was naturally disappointed. He said he felt the commissioners were milking him. In
August 2013 he informed me that he planned to expose Mayor Matti Bower and Commissioner
Deede Weithorn for promising that they would help him get a liquor license in return for $4,000
in bundled campaign contributions. Since they were together at his office when the matter was
discussed and they asked for the money, he figured they were violating the Sunshine Act. I
passed this information along to the Ethics Commission. To the best of my knowledge, the
matter was not investigated. Mr. Griffiths complaint against the city, that he was damaged by a
pattern of its allegedly criminal activity in the solicitation of a $30,000 bribe to pay the legal fees
of the commissioners wife whom he sued for defamation, is presently active in federal court.

MIAMI-DADE COMMISSION ON ETHICS & PUBLIC TRUST

REPORT OF INVESTIGATION
K #: 11-152a Boucher Brothers Miami Beach LLC
Date Opened: Dec. 9, 2011
Name of investigator: Karl Ross
Date Closed: June 5, 2012
ALLEGATION:
On or about December. 7, 2011, COE received a tip concerning a possible
Sunshine Law violation by Miami Beach leaders relating to a proposed no-bid contract
award to Boucher Brothers of Miami Beach LLC, the city's incumbent vendor for
beachfront concessions including the rental of beach chairs, umbrellas, equipment for
water sports and the sale of food, beverages, sunscreen and other items. The caller
advised that a decision had been made to waive competitive bidding on said contract
during a May 2011 retreat for elected officials and senior staff at the W Hotel in South
Beach. It was further alleged said retreat was not properly noticed to the public.
The caller also advised Commissioner Deede Weithorn may have improperly
participated in discussions regarding the beachfront concessions agreement at the May
retreat, and that Weithorn, a certified public accountant, has a conflict of interest
because her firm provides services to Boucher Brothers. Weithorn subsequently
1
recused herself from voting on the pending bid-waiver and contract extension, citing this
conflict.
INVESTIGATION:
COE opened an investigation into this matter on December 9, 2011, in order to
determine whether a Sunshine violation or violation of the Miami-Dade Ethics Code may
have occurred and began by examining available public records relating to the retreat
and to the subsequent action by the Miami Beach City Commission on December 14,
2011 to grant a bid-waiver for said contract and to extend the contract to Boucher
Brothers for up to 10 years. The bid waiver and contract extension passed by a
unanimous vote.
A copy of a meeting notice provided by City Clerk Robert Parcher shows that on
May 12, 2011 the city published a notice in the Miami Herald Beach Neighbors section
announcing various meetings, including a Commission Retreat at the W Hotel, located
at 2201 Collins Avenue., on May 20 and 21. There was no mention of any specific items
that were to be discussed at said retreat. Mr. Parcher advised COE that additional
notices were posted on the city's official Website, and on several bulletin boards located
around City Hall. He said members of the public typically do not attend such retreats,
adding: "It's kind of a strategy session." A copy of an "after-action" report prepared by
Mr. Parcher's office did note that two members of the public - Dr. Morris Sunshine and
Stanley Shapiro - attended the May 20 session of the retreat, and that Mr. Shapiro
attended the May 21 session at which there was a discussion regarding whether to
renew the contract with Boucher Brothers or to re-bid the beachfront concession
program. A decision was reached to enter into negotiations with Boucher.
The after-action report shows that during the initial session of the retreat, city
leaders participated in various exercises to promote team work, leadership and to
2
promote an "excellence model" that was moderated by Dr. Rick Jensen, founder of the
Performance Center. What appears to have been a general discussion of the need to
improve city services and to upgrade infrastructure ensued, as well as the need to
generate more positive news coverage and to enhance the city's profile internationally.
Following this discussion, a number of specific items were identified as topics for the
following day's retreat, including beach concessions and other city programs, projects
and contracts. It should be noted that none of these items - beach concessions, the
MCM settlement, Club Madonna, red light cameras, to name a few - were specifically
referenced in the public notice published in the Herald or were cited in a letter dated
May 16 from City Manager Jorge Gonzalez to the city commissioners (LTC #118-2011)
that outlined the "agenda" for the two-day retreat. The letter merely stated that at the
conclusion of each day's "interactive exercises" there would be a "discussion of ongoing
policy items."
The after-action report states on Page 7 that, during the final day of the retreat,
City Manager Gonzalez distributed to city commissioners two handouts about the beach
concession program that his office had prepared in advance. The report goes on to
state that Gonzalez asked commissioners "if the concession program should be bid, or
negotiate a renewal with the current provider the Boucher Brothers (sic)." The report
further reflects Commissioner Weithorn "stated that if the final decision is to negotiate a
new agreement as a savings to the City that whatever it would cost to prepare and
process a bid that that cost must be provided, at a minimum, by the current vendor."
This discussion was held just prior to the commission's lunch break at 1:05 p.m.
A copy of the handout shows that the city manager's office discussed the future
of the beach concession program in detail with Boucher Brothers, including city
proposed "enhancements" to the program and suggested new revenue sources-
3
proposed by Boucher Brothers - such as the sale of beer and suntan products. While
the handout does not recommend one course of action or another, it does note that it
would take four to six months to institute a "competitive process" and describes Boucher
Brothers as "a known entity with the organizational experience and capacity to continue
to operate in Miami Beach." The handout further states: "We have spoken with the
current concessionaire about the status of the concession agreement and their interest.
They are interested in continuing to service our public beach areas and have discussed
with us the opportunities delineated above ... " Finally, the handout notes that "Boucher
Brothers has requested an adjustment to the minimum guarantee (MG) back to the level
of the MG at the time of the renewal," the effect of which could be to keep its obligation
to the city from increasing beyond current levels, depending on overall revenues.
A memorandum of the Finance and Citywide Projects Committee dated
December 6, 2011, recaps discussion concerning the beachfront concessions program.
It references the May 20-21 Commission Retreat, noting that "a discussion was held"
regarding the program at said retreat and that: "In light of the satisfaction with the
performance of the current concessionaire (Boucher Brothers), and a desire to ensure
that the concession agreement addressed desirable items ... staff was directed to
negotiate a new concession agreement with Boucher Brothers" (italics added for
emphasis). The analysis portion of the memo noted that "while several entities may be
qualified and interested in undertaking a large-scale beachfront concession operation,"
the 12 other potential rival firms were smaller than Boucher Brothers. The committee
supported renewing the agreement with Boucher Brothers, taking into consideration the
costs imposed on the incumbent vendor for upgrading its rental equipment and for
expanding its services to include new programs implemented at the city's request.
4
During the December 14, 2011, City Commission meeting, Assistant City
Manager Hilda Fernandez explained that in order to help offset these costs for Boucher
Brothers, the city was willing to forgo any annual increase in the "guaranteed minimum
payment" by the concessionaire until the fourth year of the new agreement. Fernandez
explained that by refraining from imposing an "escalator" into the agreement that would
have increased the guaranteed minimum payment by 3 percent or the Consumer Price
Index - whichever is greater - this would save Boucher Brothers approximately $75,000
that could then be used by the firm to re-invest in the program in the form of new
equipment and furnishings. Fernandez noted: "Our commission, back in May at the
commission retreat, had a discussion about the future of a beachfront concession
program and at that time directed staff to begin negotiations with the current
concessionaire to see if it would be possible to enter into a new agreement with
enhanced services ... " The resolution was adopted by a 6-0 vote, Commissioner
Weithorn abstaining.
As part of its investigation, COE reviewed Commissioner Weithorn's statements
of financial interest (Form 1s) dating back to 2007, her first year in office. COE also
requested copies of all voting conflict memos (Form 8Bs) submitted by Commissioner
Weithorn, and found three (3) concerning Boucher Brothers, including one for the vote
on December 14, 2011, to grant a no-bid contract extension. It should be noted that
since Commissioner Weithorn is not a principal in her accounting firm she is not
required to abstain from voting or otherwise participating on Boucher's items, though it
would appear that she did so in an abundance of caution. COE further requested copies
of all lobbyist registration forms for Boucher Brothers and its representatives, and found
two (2) such forms. Neither related to the contract extension awarded on December 14,
2011, which is the item in question. Lastly, COE obtained a copy of the newspaper ad
5
publicizing the commission retreat, which was published in the Miami Herald's
Neighbors section on May 12, 2011.
COE interviewed the following city officials and other individuals:
Anne Swanson, former aide to Miami Beach City Comm. Deede Weithorn
Jan. 10,2012
Ms. Swanson advised that she did not attend the Commission Retreat at the W Hotel, but
said that commissioners received a binder from the city manager's office with materials relating
to said retreat. She said she had a copy of the binder, and would be willing to make it available to
COE for review. She said she was not aware of any itemized agenda detailing which items were
to be discussed at the retreat, but suggested that the binder might contain such items. She said the
retreat is usually led by consultant Rick Jensen, who meets with commissioners individually and
who serves as a "facilitator." She said she was aware that Comm. Weithorn recused herself from
any participation in the discussion of the beachfront concession program item at the Dec. 6,
2011, finance committee meeting, citing a conflict due to her firm's involvement with Boucher
Brothers. She said that, as far as she knows, Comm. Weithorn is not a partner in the accounting
firm (Berkowitz et al.) and that Comm. Weithorn does not handle the Boucher Brothers account,
at least not at present. She said she does not know if Weithorn previously handled their account,
either with her current firm or with her previous employer. She said that it may be the case that
Boucher Brothers left Weithorn' s previous firm in order to follow her to Berkowitz.
Feb. 6,2012
In a follow-up interview at COE, Ms. Swanson advised that prior to her termination
effective Feb. 1,2012, she worked for Comm. Weithorn for almost four years as a commission
aide. Regarding the commissioner's relationship with Boucher Brothers, Swanson advised that
the commissioner did not seem to have a lot of direct contact with company representatives. She
said that Comm. Weithorn, a CPA, did handle their account prior to switching CPA firms about
three years ago and that Boucher Brothers followed her to her new firm. She said that she
believes that the account was transferred to somebody else at her firm, and that she stopped
handling Boucher Brothers' books some time after she changed firms.
Miami Beach City Manager Jorge Gonzalez
March 20,2012
Mr. Gonzalez advised that representative of Boucher Brothers initiated talks leading to
the granting of a 10-year contract extension prior to the initial discussion with city
commissioners at the W Hotel. He said he was not sure who was the first city official queried
about a renewal/extension, but said that eventually he spoke to somebody at Boucher Brothers.
6
"They had a contract coming to term, to expiration, and they approached and said we'd like to
stay, and I said that's up to the commission ... That's not unusual. When a company has done a
good job, they will come to us and ask to stay." Gonzalez said this happened recently with the
management of the city's golf course and that the commission directed him to enter into
negotiations with the incumbent vendor. In another case at the convention center, Gonzalez said
the food concessionaire asked to stay on but the commission decided to put the contract out to an
RFP, citing complaints about the quality ofthe service. With respect to the Boucher Brothers
contract for beachfront concessions, Gonzalez said: "This ran through a pretty standard course of
conduct for us." He added that ifthe incumbent has performed well, he will advise
commissioners as to the expressed interest ofthe incumbent to continue its contractual
relationship and seek direction from the commissioners. He said that he did not feel that he was
being lobbied by representatives of Boucher Brothers when they first asked him about a contract
extension. He further advised he never felt that Comm. Deede Weithorn "pushed" him or lobbied
him on behalf of Boucher Brothers.
Miami Beach Commissioner Deede Weithorn
April 12, 2012
Comm. Weithorn said she handled compliance audits for Boucher Brothers starting
several years prior to becoming a Miami Beach city commissioner in 2007. She said worked on a
number of Boucher accounts, including the one for the city's beachfront concession program.
She said that after leaving her old firm about a year later, she transferred that responsibility to an
associate and Lisa Interian presently works the account, along with George Lopez, another
staffer. She said she has only minimal involvement. She added that she does not vote on any of
Boucher's items in order to avoid the appearance of a conflict. She was asked about any
involvement in the discussion that took place at the W Hotel during the May 2011 Commission
Retreat, and Weithorn stated that she did not remember participating in that discussion. (Note:
The after-action report prepared by City Clerk Robert Parcher indicates otherwise as noted
previously. )
CONCLUSION:
Based on the available information and in consultation with COE legal staff, it
was determined that the circumstances surrounding the May 20-21 commission retreat
at the W Hotel do not appear to violate the Sunshine Law. The retreat was noticed in an
ad published in the Miami Herald and by other means, though no specific reference was
made to the Boucher Brothers item and no agenda was provided. Under state law, an
agenda does not need to be included as part of a meeting notice, though it is the
opinion of this agency's staff that such an agenda, assuming city administrators had
time to prepare one, would have increased transparency and public confidence. It was
7
evident from subsequent references at public meetings that the decision to grant a no-
bid contract extension to Boucher Brothers was arrived at during the retreat. The item
did go before the Miami Beach City Commission on December 14, 2011, and was
adopted by unanimous vote without any public protest or dissent among
commissioners.
The investigation also found that while representatives of Boucher Brothers did
not register to lobby in connection with the 1O-year contract extension, no such
disclosure was required since Boucher was the incumbent vendor and, as such, it would
not be required to disclose such communication. This was the opinion of COE legal staff
as well as that of City Manager Gonzalez, who described such requests as
commonplace among incumbent vendors. Gonzalez said he did not feel that he had
been improperly lobbied by Boucher Brothers with respect to the contract extension.
Given the above, the instant case is closed without further action.
8
9