DAVID J. WINKER, P.A.

2222 SW 17th St
Miami, Fl 33145
305 801 8700
dwinker@dwrlc.com
July 15, 2020
Via email

Commissioner Manolo Reyes Mayor Francis Suarez

Commissioner Joe Carollo
Commissioner Ken Russell City Attorney Victoria Mendez
Commissioner Alex Diaz de la Portilla
Commissioner Keon Hardemon City Manager Art Noriega

RE: Miami 21 Task Force Appointments

Dear Commissioners, Mayor, City Attorney and City Manager:

I am writing to urge the Commission to reject Resolution #19/Item 7664 on the July 23, 2020
City Commission Agenda attached hereto as Exhibit A.

This agenda item is necessitated by the Florida Commission on Ethics, in its draft advisory
opinion attached hereto as Exhibit B (the (“Florida Ethics Opinion”), agreeing with my February
27, 2020 letter to you that Miami 21 Task Force members are “public officers” subject to Fla.
Stat. §112.311 et seq. (the “Florida Code of Ethics”) and that some of the Miami 21 Task Force
appointments violate the Florida Code of Ethics by virtue of their representation of third-party
clients before various boards and committees of the City, including the City Commission.

The Florida Ethics Opinion makes clear that at least two of the appointments to the Miami 21
Task Force violate the Florida Code of Ethics:1

Melissa Tapanes, Esq., who is registered to lobby on behalf of 79 clients before the City
of Miami.

Bernardo Fort-Brescia, a licensed architect and founding principal of Arquitectonica

who is registered to lobby on behalf of 8 clients.

1
The appointment of the other elector/at-large Task Force Members may likewise violate the Florida Code of Ethics
if they represent clients appearing before the City of Miami, even if they are not required to (or failed to) register as
“lobbyists.”
I am writing to urge you to reject the solution proposed by the City Attorney to override these
violations of the Florida Code of Ethics with a 4/5 vote of the City of Miami Commission under
Fla. Stat. §112.313(12).

The City of Miami has an image problem

Residents have expressed the need for a review of the Miami 21 zoning code and its impact on
their neighborhoods. Widespread disregard of setback and height restrictions by developers,
commercial development of scarce public parks, and special area projects such as Little Haiti’s
Magic City and Eastside Ridge that displace communities and offer little public benefit have led
to an outcry that the City is not looking out for residents and their neighborhoods.

The current appointees to the Miami 21 Task Force, which include lobbyists such as Iris Escarra,
Melissa Tapanes and Vicky Leiva who represent hundreds of development clients before the
City, only reaffirms the feeling that the City is a well-oiled “pro-development” machine as the
City states on its social media.

2
The solution proposed by the City Attorney doesn’t solve the problem

While a 4/5 vote of the City Commission will technically “exempt” these illegal conflicts of
interest under Fla. Stat. §112.313, it does not resolve the voting conflict prohibition in the
Florida Code of Ethics that was raised in the Florida Ethics Opinion.

Fla. Stat. §112.3143(3)(a)- Voting conflicts provides:

No county, municipal, or other local public officer shall vote in an official capacity upon
any measure which would inure to his or her special private gain or loss; which he or she
knows would inure to the special private gain or loss of any principal by whom he or she
is retained or to the parent organization or subsidiary of a corporate principal by which he
or she is retained, other than an agency as defined in s. 112.312(2); or which he or she
knows would inure to the special private gain or loss of a relative or business associate of
the public officer.

As such, the Task Force members that represent clients before the City will not be able to vote
on any matters that impact (positively or negatively) the clients they represent before the City.

This voting prohibition will make the Task Force unworkable and makes sense given the overall
goal of the Florida Ethics Code to “promote the public interest and maintain the respect of the
people for their government.”2

A Path Forward- now is the time to restructure the Miami 21 Task Force

I want to reiterate the statement in my February 27, 2020 correspondence that:

the conflict issues raised herein are not personally directed at the integrity of these
individuals. And there is no doubt that they are extremely knowledgeable about Miami
21 and that their voices deserve to be (and undoubtedly will be) heard in the process.

But now is the time to rework the structure of the Miami 21 Task Force so that it works for all
residents of Miami, not just special interests.

A task force traditionally works best when decision-makers are independent community thought
leaders whose role is to gather relevant information from all constituencies to draw conclusions
and make recommendations.

The Miami 21 Task Force should be reconstituted with community members who do not
represent clients with a direct financial interest in the Task Force’s recommendations. The Task

2
http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf?cp=2020226

3
Force should then solicit input from all interested parties- residents, developers, architects,
engineers, lawyers- and synthesize what they hear from these diverse sources to make
recommendations on how to revise and improve Miami 21.

Picking independent and unbiased decision-makers is not only a critical part of an effective task
force, public confidence in the integrity and impartiality of the Miami 21 Task Force and the
acceptance of its recommended changes hinges on ensuring that this happens.

Thank you,

_____s/djw________
David J. Winker, Esq.

cc: City Clerk Todd Hannon

Jose Arrojo, Executive Director

Miami-Dade Commission on Ethics

4
EXHIBIT A
 CITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM

TO: Honorable Mayor and Members of the City Commission

FROM: Victoria Méndez, City Attorney
DATE: July 23, 2020
RE: City Commission Meeting – July 23, 2020
Resolution waiving conflicts of interest of members of the Miami 21 Report
Ad Hoc Task Force.
File No.: 7664

The attached proposed Resolution waives, by a two-thirds (2/3) majority vote,

any conflict of interest the Members of the Miami 21 Report Ad Hoc Task Force (“Task
Force”) may have provided that Task Force members comply with disclosure
requirements.

Attachment(s)

cc: Arthur Noriega V, City Manager

Miriam Santana, Agenda Coordinator

VM/BLM/GKW/vja

Attachment(s)
7664 Exhibit
 City of Miami City Hall
3500 Pan American Drive
Legislation Miami, FL 33133
www.miamigov.com
Resolution
File Number: 7664 Final Action Date:

A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),

WAIVING BY A TWO-THIRDS (2/3) MAJORITY VOTE, ANY CONFLICT OF
INTEREST THE MEMBERS OF THE MIAMI 21 REPORT AD HOC TASK FORCE
("TASK FORCE") MAY HAVE, IF ANY, IN ACCORDANCE WITH SECTION
112.313(12), FLORIDA STATUTES, SUBJECT TO THE TASK FORCE MEMBERS
PROVIDING PROOF OF SUBMITTAL TO THE STATE OF FLORIDA OF A FORM 4A,
"DISCLOSURE OF BUSINESS TRANSACTION, RELATIONSHIP OR INTEREST
FORM", ATTACHED AND INCORPORATED.

WHEREAS, the Miami City Commission adopted Resolution No. 19-0523 directing the
City Administration to review and assess Ordinance No. 13114, the Zoning Ordinance of the
City of Miami, Florida, as amended (the “Miami 21 Code”), and issue a report to the Mayor and
City Commission; and

WHEREAS, on January 23, 2020, the Miami City Commission adopted Resolution No.
R-20-0015 creating the Miami 21 Report Ad Hoc Task Force (“Task Force”) in order to conduct
meetings and deliver recommendations to the City Commission, Mayor, and City Manager on
possible changes or measures to the Miami 21 Code as more particularly described in
Resolution No. 19-0523; and

WHEREAS, Section 112.313(7)(a), Florida Statutes, provides 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. . .; nor shall an
officer or employee of an agency have or hold any employment or
contractual relationship that will create a continuing or frequently recurring
conflict between his or her private interests and the performance of his or
her public duties or that would impede the full and faithful discharge of his
or her public duties; and

WHEREAS, in accordance with Section 112.313(1), Florida Statutes, the term “public
officer” includes any person elected or appointed to hold office in any agency, including any
person serving on an advisory body; and

WHEREAS, because the members of the Task Force are public officers as defined in
Section 112.313(1), Florida Statutes, they are subject to the prohibitions found in Section
112.313(7)(a), Florida Statutes – namely, the prohibition of any potential continuing or frequently
recurring conflict between their private interests and the performance of their public duties or
that impede the full and faithful discharge of their public duties caused by, among other things,
their representation of third parties in matters before various boards and committees of the City
of Miami (“City”), including the City Commission; and

WHEREAS, several of the members of the Task Force have an exemption from the
conflict of interest prohibitions pursuant to Section 112.313 (7)(b), Florida Statutes, which
provides that “This subsection shall not prohibit a public officer or employee from practicing in a
particular profession or occupation when such practice by persons holding such public office or
employment is required or permitted by law or ordinance”; and

WHEREAS, Section 112.313 (7)(b), Florida Statutes, effects a “waiver” of a conflict of

interest by recognizing that certain credentials are so vital to the expertise and operation of a
public board that the otherwise conflicting business/client connections of certain members must
yield to the public purpose of a portion of the board’s membership possessing such professional
training and practice; and

WHEREAS, with respect to the Task Force, the above-refenced exemption applies only
to the three (3) members – two (2) appointed with experience in the practice of land use law
and/or real estate development law and one (1) appointed as a certified architect, a certified
engineer, or a certified neighborhood planner; and

WHEREAS, the remaining nine (9) members whose seats were not tied to a particular
profession or occupation and who may have a prohibited conflicts of interest pursuant to Section
112.313, Florida Statutes, by virtue of their representation of third-party clients before various
boards and committees of the City, including the City Commission, need a waiver from the City
Commission; and

WHEREAS, Section 112.313 (12), Florida Statutes, allows an appointing body to vote to
waive a particular conflict of interest of a member of an advisory board upon full disclosure by
the member of the specific conflict on Form 4A, “Disclosure of Business Transaction,
Relationship or Interest”, attached and incorporated as Exhibit “A”; and

WHEREAS, absent this waiver, several of the appointed members of the Task Force
may have a prohibited conflicts of interest and, consequently, will be unable to serve on the
Task Force; and

WHEREAS, this matter was discussed with the Florida Commission on Ethics and in its
draft opinion, filed for final consideration at its upcoming July 24, 2020, Commission on Ethics
meeting, it was recommended that “if the members of the Task Force who may have conflicts
disclose those conflicts on CE Form 4A to the City Commission and if the City Commission then
votes by a two-thirds vote to waive the specific conflict, then the conflict of interest will be
waived”;

NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF

MIAMI, FLORIDA:

Section 1. The recitals and findings contained in the Preamble to this Resolution are
adopted by reference and incorporated as if fully set forth in this Section.

Section 2. Any conflict of interest caused by the appointment of a member to the Task
Force is hereby waived upon proof of the Task Force member’s full disclosure of their conflicting
transactions or relationships on a State of Florida Commission on Ethics Form 4A, “Disclosure
of Business Transaction, Relationship or Interest”, attached and incorporated as Exhibit “A”.

Section 3. This Resolution shall become effective immediately upon its adoption.
APPROVED AS TO FORM AND CORRECTNESS:
EXHIBIT B