CAO 01-03 Code Sec 38-6
CITY OF MIAMI BEACH
CITY A TTOlt.'\fEY'S OFFICE
TO:
Commissioner Nancy Liebman
c.-\O 01-03
FROM:
Murray H. Dubbin
City Attorney ./\ l\
J
Jean Olin ", -(
Deputy City 4torney
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DATE: March 21, 2001
SUBJECT: City Code Section 38-6 - Prohibited Campaign Contributions by Vendors
Since your questions are likely to be asked by other candidates, it is appropriate that the answer be
embodied in a CAO and distributed generally.
~ .
In your March 7, 2001 memorandum you have requested our opinion on four panicular issues. We
have reviewed City Code Section 38-6 (Ordinance No. 2000-3244) and respond as follows:
1) Is a person who has entered into a development agreement with the City
considered a Vendor?
"Vendor" is defined in the Code as" ... a person who transacts business with the
City, or has been approved by the City Commission to transact business with the
City, or is listed on the City Manager's approved vendor list."
Reviewing the Ordinance No. 2000-3244 in its entirety, including for example the
waivers of prohibition provisions, it appears that the legislative intent was to restrict
the prohibition to persons who have contracted with the City of Nliami Beach for the
provision of goods or services. This would include, for example, furnishings,
fixtures, equipment as goods and engineering, architectural, legal. sanitation as
services.
Accordingly, It IS our OpIntOn that if a particular "development agreement"
transaction does not call for the contractor to supply goods or services to the City. he!
she/it would not be considered a vendor. Again, for example, there are a number of
developers who have entered into development agreements with the City to comply
with the regulatory scheme of the City that do not involve a separate sale, transaction
or transmission of goods or services - - these contracting parties would not be
considered vendors. A development agreement which entails the provision of goods
and services would be included within the definition of vendor.
2) If a City vendor is a principal in more than one corporation, may the corporate
entity not doing business with the City make a campaign contribution'?
In addressing this question. it becomes apparent that there are a number of scenarios
a candidate may be required to address in considering whether to accept campaign
contributions from personal or corpor~J.[e contributors.
Accordinglv, I have attached our :.lnalvsis of all the scenarios we .:ould think of that
- ~ ".
would give guidance to a candidate. There may be other fact situations which arise
and they will have to be dealt \vith on a case by case basis.
3) Please explain "Controlling Financial Interest" as a criteria related to this
Ordinance.
The words "Controlling Financial Interest" are not defined in the Ordinance.
Accordingly, I would apply the accepted definition of the term as normally used in
day to day business.
In my opinion, a controlling financial interest would exist if a natural person or
business entity, in the absence of a contractual restriction to the contrary. holds or
controls over 50% of a business entity's aggregate shares (or partnership or LLC's
interest). Such an interest would also exist, if the proposed contributor owned a lesser
amount coupled with a contract giving him, her or it financial control of the business
entity.
4) Are the following entities considered to be vendors by doing business with the
City when permitted to provide a service on the City's public right-or-way?
Sidewalk cafe operators
Special event permit holders
The answer is no in both instances in the absence of an obligation on them to provide
goods or services to the City.
MHD:lm
Encl.
Cc: Mayor Neisen Kasdin
Members of the Commission
City Manager Jorge M. Gonzalez
City Clerk Robert Parcher
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CAMPAIGN CONTRmUTrON ANALYSIS
SECTION 38-6
1) "Vendor" may not make a campaign contribution.
2) Vendor may be:
a) Natural person
b) Business entity, i.e., corporation, other type or partnership, LLC.
3) Various Scenarios.
A) Natural Person cannot contribute:
1) if he/she is personally a Vendor
2) if he/she has a controlling financial interest in a business entity who is a
Vendor.
B) Business Entity cannot contribute:
1) ifitisaVendor
2) if it owns a controlling financial interest in a business entity-Vendor.
C) Natural Person or Business Entity Non Vendor who has a D.QD. controlling financial
interest in a business entity- Vendor gm. contribute.
D) Business entity Non Vendor who is subject. to a D.Q.!l controlling financial interest by
a Vendor (personal or corporate) can contribute.
E) Business entity Non Vendor who is subject to a controlling financial interest by a
Vendor (personal or corporate) mav contribute provided such contributions were not
directly or indirectly made by the holder of the financial interest.
F) Business entity Non Vendor who is subject to a controlling financial interest by a
natural person or business entity who/which holds a controlling financial interest in
a business entity Vendor mav contribute provided such contributions were not
directly or indirectly made by the Vendor entity or the person who holds the
controlling financial interest.
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