CAO 00-08
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CAO 00-08
CITY OF MIAMI BEACH
CITY ATTORNEY'S OFFICE
TO:
Mayor Neisen Kasdin
Murray H. DUbbi" \~ . .1.0 I/~
City Attorney I \}ll.~~.
July 14,2000
FROM:
DATE:
SUBJECT:
CONFLICT OF INTEREST - AUDIT COMMITTEE MEMBER'S
ACCOUNTING FIRM SUBMllllNG BID FOR INDEPENDENT AUDITING
SERVICES
Pursuant to your request, I have researched the issue of whether a conflict of interest exists were City
ofMiarni Beach Audit Committee member Laurie Holtz' firm, Rachlin, Cohen & Holtz, to submit
a bid in response to the City's RFP for external auditing services. For the reasons stated more fully
below, a per se conflict of interest would exist under both County and State Law, However, such
conflict may be waived by the City Commission upon a two-thirds vote.
FACTUAL BACKGROUND
Under the facts provided!, Laurie Holtz, member of the City's Audit Committee, will have no role
with regards to the preparation of the subject RFP, nor will he have any participation in the
determination of the bid specifications or the determination of the lowest or best bidder.
Furthermore, all bids submitted pursuant to this RFP will be subject to a sealed competitive process.
The services of the external auditor will eventually be subject to review and comment by the Audit
Committee.
LEGAL ANALYSIS
Both Florida law as well as Miami Dade County law prohibit an appointed board member from
having a contractual relationship with an entity which is doing business with the agencf for which
the board member serves. See, Section 2-11.1 (c) and (d), Miami Dade. County Code, as well as
Section 112,313 (3) and (7) (a), Florida Statutes. Florida law further prohibits a public official from
selling his services to his own agency. See, Section 112.313 (3), Florida Statutes, Nonetheless, both
IThis office has been in contact with the City's office of Procurement in order to discover
facts relative to the subject RFP.
2"Agency" is defined to include a municipal government. See, Section 112,312 (2), Florida
Statutes,
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County and State laws provide that the subject conflict may be waived by the City Commission upon
an affirmative two-thirds vote of said body, after full disclosure of the conflicting relationship, a
finding that the subject business has been awarded under a system of sealed competitive bidding,
and public hearing held thereon.3
State law also provides for an exemption to the prohibition against conflicting contractual
relationships in instances in which the subject business is awarded under a system of sealed
competitive bidding to the lowest or best bidder, and 1) neither the official nor his spouse or child
has participated in the determination of the bid specifications or the determination of the lowest or
best bidder; nor 2) has the official or his spouse or child in any way used or attempted to use the
official's influence to persuade the agency or its personnel to enter the contract other than by the
mere submission ofa bid; and 3) prior to or simultaneous with the submission of the bid the official
has filed the attached disclosure form4 with the Dade County Elections Supervisor. See, Section
112.313 (12) (b), Florida Statutes.
JO:lm
3This waiver request would also require disclosure of the fact that were Rachlin, Cohen &
Holtz selected as the successful bidder, its services would be subject to review and comment by the
Audit Committee. In order to refute any "frequently recurring conflict" otherwise prohibited under
Section 112,313 (7) (a), Florida Statutes, the waiver (if obtained) would be in addition to Mr. Holtz'
conflict abstention pursuant to Section 2-458 of the City Code.
4TIle filing of this form under State law does not obviate the need, under County ethics laws,
to obtain a two/thirds conflict waiver from the Miami Beach City Commission,
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. FORM 3A INTEREST IN COMPETITIVE BID FOR PUBLIC BUSINESC:
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lUST NAME FIRST NAME MIDDLE INITIAL OFFlef !POSmON HELO
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MAILING AllORESS AGCiNer
em ZIP COUNTY lAllDRess OF AGCiHCY
WHO /!lUST FILE THIS STATEMEHT
Sections 112.3L.:!(::t) and 1 Ig.3 1:1(7), Florida Statutes. p:-chibi c cer:~in business :-cl. donsr.ip. 0r1 the par: of public offic~s and
.!mployees. theIr spcu,'p.s, and the:r children. S~'- ?art III, C;,.~?ter 1 12, Florid", St:lt'.Jtes, ~nd/or :hc brochure entitled -A Guide
to the Sunshine Amendmem ~l'Id Code of F.thics far Public Officer" ",nu Employees" tor mor~ deuil. an the..e prohibitions.
However. Section 112.3 lj(!2). FJnridOl St~t'~tc.~. provides ct!r:aill lin:ited exe:::p::ons to the aoove-referenced p,'ohibitions,
including onc where the blJ.~iness is aWrtrded under " sv~te::1 of s..,lcu, c:ocpetitivc bidding'; tl:e public official has exel'ted no
inrluence on bid :1egoti::ci01l5 01' specific.rions; .\.'<'0 \AI h;re disclosure is made: prior 1<> or at the time or the suomi.~ion or t.~e bid.
of the official', 01' hi~ .'!pcuse's or child's interest and che nature or the incended busine5$. This form has been ?romulgated by the
COI%'.rnissicn on Ethics for ~uch disclosure, ifillld U:Mn ilp!,iit::tale co. p\loiic ornc(;r or employee.
1. The corl1['eti:ive bid tD which litis .<r:\temcne -rplies h... heen / ",ill be (sLdkM nne) 5ubmit".l!d to the 1.,IID"';n: J;Uvr:mme.tIL "l:'''"CJ':
~. The ['",.,.nn sUbmitti"lr the bill is; :"lA."IE. POsmON ". .
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:/. The busi"",,,,, entiLY ",irh ....hich the !'lerso" sultmittinJr Lb, hid is ."...aated is:
'1. My relatiunship :0 Ihe rt'rson or ulL,in...... entily ""bmit:in!:, che bid is as follows:
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5. Thp oatu,'" Dr the busiD""" i"tend.-d to ~ tr1In.,.cwd in Ihe ovent l!lac this bid is awarded is as li,lInw.<:
a. 11,,, realtY.l:"nd,.. amI I Dr <eI'Y;';".' fD be 5ul'rlip.d specilically inclucJr;
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b. '111<1 re:tlt)l,l.",mJ~, ali<.I / or .'e1'v;"", ...ill be sllPr'lied Ji,,' the folluwinf( period "frime:.. .
c. \Vill the cnnt....": he 5u!.,,,er tn re:1c",.1 ,.,;chout Iiln:her comnetitiv., hiddine-? a Yes aNn. r r so. ItU'-ll nrren;)
c;. I\ddiulln;oj coonmMnt.:
.. SIGNA TliHE: [JA:rE: SICNl::D 0,\ TE fiLED
INTEREST IN COMPETlTlVE BID FOR PU8UC BUSINESS (lleqwred by i JJ~..n~(J~)(b}. F1~, St:lr.)
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FILING INSTRUCTIONS
IfyolJ ar~ a St.1CC officer ur employee requirc~1 co diselu~e the j"for:n~tion above. plca~e file this form with the Department ofSc.'~
at Room ltlOl, TIle Capitol, TaI1ah~ssec, l'lorida S:!S9!l-O!!50, If you ;tre an nmcer or employee ofa politi.:.,! ~ubd.ivuio".oE'dtiS
~tOlte and are subject en this disclosure, plt'as\! tile the st.ltemenC with the Supervi~'Jr of Ele<:eions of the county in which the:
~gency in which you arc :lervi"g h.1s ie.. principal office.
~E:~ PROVISIONS OF FLORIDA lI'T.\TUTES ~'I':'SI"" ^ F'Alt.UtU:: TO M^Kl:: MlY 1\EQUIREO OISCLOSUIll:: t:01'l:mTtJ1"ES
onoulIm.'l ~'OR A:-ID MAyDe: PUNISHED IlY ONE OR MORE O~. THE FOLLOWIScr. IMPF'...\cllMl::NT, REMO"''''. Oil SUSPENSTON l"&OM
OI"1'1C:C: OR !M"LOY:\oI~T. OEMOTlO",. REnUC1101'lIN St\L..I.RY. RJ::I'IUj\oIAl'IO, Olt" t:JVlL p~AI,TY NoT TO EXt;1::EO s I 0,000.
ctc:aIMu_'.v fA.