Can Miami Beach Fire Rescue save Miami-Dade Ethics Commission?



Unearthed Fire Department Case Illuminates Nature of County Ethics Commission

28 November 2014

By David Arthur Walters THE MIAMI MIRROR

David Weston provided the Miami Mirror with hitherto unpublished Miami-Dade Commission on Ethics and Public Trust investigative report number K08-116, in the matter of gifts provided to fire department regulators by an auto show promoter. The dismissive report, dated 4 May 2009, illuminates the institutional blindness of the ethics commission’s investigative staff, especially in respect to the suspicious behavior of officials of the City of Miami Beach.

Weston, who has an engineering degree, was a consulting fire inspector or non-classified employee with the city’s fire department. He was terminated because he persistently complained that the city was failing to collect millions of dollars in fees, a claim that was deemed credible by law enforcement. Some of his claims have more recently been proven true by the Miami Herald even though Jimmy Morales, Esq., the city manager hired on April Fools Day 2013 to curb corruption, did exactly what he promised not to do, and brushed Weston’s allegations under the rug by referring it to the Human Resources Department, whose lawyer peremptorily dismissed the allegations.

Weston, characterizing certain city departments as racketeering operations, has persisted with his investigations and whistle blowing since his termination on the pretext that his investment in a boat docking business in which a private inspector also had an interest violated ethics code. A rumor was circulated among city employees that portrayed him as the leader of a corruption ring, and he says that he was treated at an initial meeting with law enforcement as if he were a criminal for blowing the whistle, yet not one iota of evidence has surfaced that he himself was corrupted in any way; quite to the contrary.

Weston is affluent, and his wife is a lawyer, yet he has thus far declined to bring a defamation suit against the city for refusing to purge his file of its allegedly false and malicious content because, he says, he believes defamation lawsuits are unproductive, he desires to remain on the good side of the government as a private inspector, and he has faith that government on the whole can be reformed with his help to that side.

Sylvia Batista, the author of K08-116, interviewed Weston, and her report mentions that “Weston was forced to resign from his City job on 3/21/08 ostensibly for committing an ethics violation involving his ownership of a business devoted to managing inspections and expediting permits. Weston recalled that in reality he was fired in retaliation for having come forward with information that led to an investigation by the FDLE (Special Agent White) and Miami-Dade County Police Department Public Corruption Bureau (Agent Alex Baldor). The information provided by Weston leading to the investigations involved permit fees not being properly assessed and collected by the City on very large and valuable properties.”

She did not mention in the report, concluded in mid 2009, that the county ethics commission for which she worked had cleared Weston of the ethics charges in a 2 September 2008 letter, in re File RQO 08-36, signed by Executive Director Robert Myers and sent to Weston, with a copy to Jean Olin, special counsel to the City of Miami Beach. In 2013 I provided City Attorney Jose Smith, who was appointed in 2006, with an opportunity to answer Weston’s allegations about the involvement of his legal department in Weston’s wrongful termination. Smith, who would resign in 2014, categorically denied any involvement of his office whatsoever. On 13 March 2013, he reported to the city commission that David Weston was not forced out of employment with the city, that he “was terminated from employment for violating provisions of the Miami Beach Code Article VII Standard of Conduct and several provisions of the Miami-Dade County, Conflict of Interest and Code of Ethics ordinance.”

Batista’s investigative report asserted that information had been received that Sonia Machen, then fire marshal for the city’s fire department, had commanded a firefighter to pick up free tickets to an auto show, to be distributed to fire department employees, contrary to county and city policy prohibiting conflicts of interest. Conflicts of interest tempt officials to use their offices for personal gain, which is the simple definition of public corruption.

Theoretically, if regulators with the fire department did not receive free tickets for themselves, family, and friends, they might over-regulate or wrongly regulate such events. Even worse, firefighters might drag their feet if the premises caught on fire. Of course, ethical fire inspectors and fighters are incorruptible; still it is best not to put temptation in the way and then rely on the consciences of the others; bribes of all kinds including tickets to auto shows should be absolutely prohibited.

A firefighter by the name of Renato Sejas, who happened to be the special events coordinator for the convention center where the annual South Florida Auto Show was to be held, testified that he had encountered the event’s promoter, who asked him if he needed tickets. He replied that the fire department’s no-gift policy, re-published in 2007 by Sonia Machen, fire marshal, prevented him from accepting tickets. Then Machen asked him if he had gotten tickets for the year. He said he told her that he did not understand how tickets could wind up at the fire department, and asked her if she still wanted the tickets. Yes, she wanted him to get the tickets. He asked how many she wanted. Two-hundred would do, she answered, so he got 200 tickets, valued at $2,000, from the promoter, and delivered them to Fire Chief Yuhr, putting them on his desk, saying, according to Chief Yuhr, something like “I don’t agree,” or “I don’t think anybody should accept tickets.” Yuhr said he kept 20 of the tickets for himself and doled out the rest.

The “zero-tolerance” no-gift policy Machen promulgated by email in 2007 was presumably based on the Miami-Dade County Conflict of Interest and Code of Ethics Ordinance Section 2-11.1 (g), which states that no person “shall use or attempt to use his official position to secure special privileges or exemptions for himself or others except as may be specifically permitted by other ordinances and resolutions previously ordained or adopted or hereafter to be ordained or adopted by the Board of County Commissioners.”

The no-gift policy had already been established in a 13 August 2003 interoffice memorandum to all personnel signed by then Fire Chief Floyd Jordan:

“To maintain a high level of public trust an promote confident in our integrity and objectivity in Life Safety, Fire and Code Enforcement, the following directive shall be effective immediately: No member or employee of the Miami Beach Fire Department shall solicit or accept any gift, including money, services, loans, travel, entertainment, hospitality, or alcoholic beverages, which can be reasonably inferred or intended to influence, or reward for any official action taken by an Department employee, in their capacity as Firefighter, Fire Inspector, or Supervisor….”

A separate, 10,000 essay might be drafted elsewhere and entitled ‘The Nature of Reasonable Inference and Intention, and their relation to Prosecutorial Discretion.’ Suffice it to say here that whether or not a proposition is reasonable or not depends on critical scrutiny by the crowd that includes wits as well as dimwits, and not on a single investigator’s conclusion tucked away, out of sight, in a cabinet somewhere pending execution of a document destruction policy.

Sonia Machen told the investigator that she did not intend her no-gifts policy to apply to gifts distributed to employees by the city or their own department, as opposed to being received directly from event promoters. It stands to “reason” that a gift from your employer is not a gift from someone else even though your employer is the intermediary for the gift.

The ethics investigator apparently did not examine a copy of Machen’s 2007 email reiterating the policy. Machen admitted that the policy needed to be clarified in that respect. She explained to the investigator that the fire department received complimentary tickets each year for the auto show as well as for the home show, and, until very recently, for the boat show. The tickets are then distributed amongst fire rescue employees, including regulatory personnel from her department. The distribution of show tickets “has been done for years” in the fire department, she said, which receives 200 complimentary tickets every year and distributes them to its employees.

The lease agreement with the promoters of the show provided that the city was to get 400 tickets. The ethics investigator assumed those tickets were an ethical inducement for it to enter into a contract, not a bribe to the city at large or to the officials to whom the tickets were distributed. The issue, as she saw it, was that the 200 tickets provided for the fire department were over and above the 400 given to the city, so, in the future, tickets for the fire department should be included in the lease agreement. Still, the 200 this year could not be counted as bribes because they were given to the firemen’s boss and not to the firemen as individuals.

That rationale allowed the ethics investigator to dismiss inquiry number K08-116, apparently the 116th K file for the year 2008, and the ethics commission to file it away or brush it under the rug with other K files out of sight of the public instead of publishing it on its the website with C files, which are similar it in the formal sense that an investigation has been conducted and the suspicions dismissed for lack of probable cause.

Incidentally, one might wonder why the city, instead of including tickets in the contract, would not simply buy the tickets and hand them out to employees with their pay checks as bonuses, which is one way free tickets had been previously distributed. Well, the value of the tickets would probably be taxable to the employee. Perhaps a whistleblower might seek advice from the Internal Revenue Service as to whether the tickets to all events in the past years should have been reported as compensation to employees, and, if so, if income taxes should have been withheld and forked over by the city, or paid by the recipients.

By the way, what was the real value of the tickets? How much do people actually pay on the average to see automobiles advertised? The promoter told Batista that he did not know of the no-gift policy, and that the face value of the tickets was $10, but tickets discounted from that amount had been distributed around town. Who knows? Maybe they were worth a dollar. The fire department used to allow employees to accept gifts less than $25, but that amount had since been changed to zero.

Governments may or may not provide for the acceptance of gifts up to certain limits, and may or may not allow gifts of nominal value or trivial gifts to be accepted—would a fire department inspector sell his soul for a coffee mug? For example, take the recently published rules of just a few governments that mention tickets in their rules:

In Connecticut, if you are a public employee you may not accept gifts from entities you do business with or regulate except token items worth $10 or less aggregating $50 or less from a single source. Gifts between supervisors and subordinates must be less than $100.

If employed by New Jersey, you may not accept any gift whatsoever from anyone related to your official duties except gifts of trivial or nominal value offered to the public in general or gifts from supervisors or subordinates. State employees may not attend events in their public capacity unless a legitimate state purpose is served, and attendance must be approved beforehand by the Ethics Liaison Officer.

If you work for New York City, you may not accept gifts aggregating $50 or more from anyone that does or intends to do business with the city. Exceptions include tickets to functions encouraged by city policy, or where your agency has provided written approval on the grounds that your attendance would be in the interests of the city.

As for Washington State, you may not accept gifts when it could be reasonably expected that it would influence your official behavior. Unsolicited gifts of nominal value may be accepted such as flowers, plaques, and refreshments where your attendance is required, etc.

If you work for Maryland, you may not solicit or accept gifts, including gifts to sporting events, meals and alcoholic drinks, with certain exceptions such as gifts of nominal value such as coffee mugs, and, if you are a high official, you may accept tickets to a charitable, cultural or political event. Tickets with a value exceeding $20 must be reported on the recipient’s finance disclosure statement.

In Ohio you may accept gifts of nominal value such as coffee mugs, t-shirts and mouse pads from anyone, but you may not accept gifts of substantial value such as tickets to sporting events from entities doing business with or regulated by your agency.

The City of Miami Beach may want to prohibit all employees from accepting tickets not only from entities that contract with the city but from the city itself unless those tickets are paid for by the employee or included as compensation in payroll reports.

Although the particular issue here at hand is as old as Rome, it illustrates the methods enjoyed by ethics investigators, who are themselves public officials, to excuse what appears to be the unethical conduct of public officials, and even to make sure that inquiries about their conduct never become an published formal finding of no probable cause or a formal complaint filed with the Ethics Commission.

One principle often employed is that IF it is customary for public officials violate an ethics ordinance because no one has complained about it before, THEN they should not be prosecuted when someone finally complains. That is, custom trumps the law; a law unenforced is no law at all. When you get away with wrong long enough, wrong seems right. In a similar way, monumentally absurd Supreme Court decisions are allowed to stand unchallenged for so long that lawyers are leery of challenging them.

As we have seen in her investigation of Machen et al, the ethics investigator seemed to believe that the ordained prohibition should be ignored because it had been the venerable custom to ignore it. However, since the practice looked bad, and condoning it outright would look bad, she suggested strictly adhering to the workaround already worked out to sanction the venerable practice with a disguise: make sure the tickets for the firemen are included in the document leasing the city’s convention center to the promoter.

Another example, one that includes obeisance to tradition, is the opinion of ethics commission advocate Michael Murawski, Esq. in his published investigative report on the Club Madonna Affair. Leroy Griffith, the totally nude club’s owner, said that city officials, most of them lawyers, tried to extort him out of $30,000 to pay the legal fees of Jane Gross, whom he had sued for defamation, she being the wife of a sitting commissioner who opposed his application for a liquor license. Murawski leaned on the venerable tradition that wrongdoing by officials was usually not prosecuted by the commission when done under the advice of attorneys. After all, how would someone know that an act was wrong if the city attorney, the authority on the subject who was himself a defendant, said the act was legal?

I myself was asked at an ethics commission meeting, would I not rely on the advice of an attorney in ethical matters? I certainly would not, and not because I thought an attorney could not get me acquitted if I was charged with an offense, but because I believe sophistries have rendered all too many lawyers institutionally blind to the Good, and that every individual must look for his integrity or integration with the Good in his conscience after perusing the great classical conversation on ethics. Conservative authority does not like skeptics very much although the progress of civilization, if freedom is the ground of being, depends on skepticism outrunning dogmatism in the long run.

The reader may recall a similar case because it received a great deal of fanfare in the press, a 2011 case of allegedly criminal ticketing. There, 26 items of greater value than the 200 items in the Machen case were questioned because the city tried to get them into a contract.

According to a 20 October 2011 report by the Miami Herald, the Florida State Attorney’s office declined to bring criminal charges against Miami Beach City Manager Jorge Gonzalez and his right-hand assistant Hilda Fernandez for demanding 26 tickets to every New World Center event plus $10,000 in tickets to the symphony’s gala fundraising event in return for making a $15 million reimbursement grant. The demand was reportedly made by Mr. Fernandez upon Neisen Kasdin, the New World Symphony’s chairman, who subsequently initiated the complaint. He declined to discuss the closing of the investigation with the Herald, stating that the issue had been worked out with the city. Chief Assistant State Attorney Jose J. Arrojo’s memo stated that a law prohibiting officials from “soliciting or demanding any gift” may have been violated, but he declined to prosecute the case because proof of criminal intent would be improbable given the fact that a longstanding city policy of obtaining tickets for distribution had been condoned in 1992 by the Florida Commission on Ethics, and that the City of Miami Beach had resolved a year later that such tickets were for distribution to the needy.

No doubt needy voters, not to mention wealthy voters, appreciated the expensive tickets to the annual wine and food festival. Hell would have frozen over before I received a ticket from the city manager. A recommendation was made to distribute such tickets randomly via blind drawings.

Apparently, the rulings of county and state ethics commissions, resolutions by city commissions, arbitrary opinions of state attorneys, and the institutional blindness of state governors and attorney generals who refer complaints about the negligence of the former right back to the former, trump criminal laws in the State of Florida, especially in South Florida.

Whatever the laws are, they might not be enforced for one reason or the other. Indeed, residents have long known that the violation of some laws is virtually traditional in Miami Beach, where ordinances are even passed to please people, the commissioners publicly patting themselves on the back with press releases, knowing very well that the ordinances they pass will never be enforced, wherefore disobedience will become a long tradition….

Another principle followed when the truth is outed is to caution officials to avoid similar appearances of impropriety in the future. Appearances of impropriety are best avoided because it reduces the probability that officials might be caught committing improper deeds. Of course illusive casuistry can make seemingly obvious appearances of impropriety appear quite proper. That is why lawyers have been called magicians.

Since the ethics report on the 200 extra tickets Machen wanted for the fire department was not published by the Ethics Commission, its advice was limited to the officials involved instead of warning all county officials, as is done in public Ethics Instruction, as well as to inform the public of what conduct is expected of public officials, and what the appearances of misconduct might be so they can notice it and file complaints accordingly.

According to David Weston, the Machen report was exceedingly difficult to for him obtain even though he was one of the persons interviewed on the matter. Rhonda Sibilia, the communications director for the county ethics commission, informed me that such reports are not posted on her commission’s website because there are too many of them. However, she said, they are available to the public as public records on request.

It follows that whosoever requests particular reports would have to know of their existence beforehand; otherwise, the proceedings of the public inquisitors would never see the light of day.

Mr. Weston was privileged to receive his copy as a PDF free of charge; therefore, since our editor is flat broke, we have asked Mr. Weston to obtain all the so-called K Reports for the last five years in PDF format with optical character recognition facilitated, and turn them over to the Press. That would help analysts illuminate the collective unconscious factor buried in ethics commission files, the submerged basis from which arise the conscious apex: i.e. the proceedings and judgments it deems worthy of being known on its website.

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