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CAO 00-06 i . CITY OF MIAMI BEACH Office of the City Attorney Interoffice Memorandum TO: LAWRENCE A. LEVY CITY MANAGER C,A.O, NO, 00-06 C.M,O, NO. 1-4/00 FROM: /. - MURRAY H. DUBBIN (1j)Iv"- CITY ATTORNEY ~ \llL~t May 4, 2000 Date: Subject: REQUEST FOR LEGAL OPINION - CITY OF MIAMI BEACH ETHICS ORDINANCE PROHIBITING LOBBYING BY DEVELOPMENT REVIEW BOARD MEMBERS By memorandum dated April 11 , 2000, you forwarded a request for a legal opinion from the Planning Director to clarify the effect of ~2-459 of the Miami Beach Code, entitled "Certain Appearances Prohibited," on the ability of City Development Review Board Members to interact with other boards and staff on various development projects in which they may have some role. This memorandum responds to that request through the specific questions the Planning Director has asked, enumerated below, Miami Beach Code ~2-459(a)(I) prohibits any member ofa city board "[e]ither directly or through an associate, from appear[ing], respresent[ing] or act[ing] on behalf ofa third person before the city commission or any city agency with respect to any agency action sought by the third person," Section 2-459(a)(2) prohibits any such board member from "[e]ither directly or through an associate be[ing] engaged as a lobbyist for and on behalf of a third person with respect to any official action by any public officer sought by such third person." Development Review Board members are members of the Planning Board, Historic Preservation Board, Design Review Board and the Board of Adjustment. Ouestion 1. Are Board Members who are design professionals (Architects, Engineers, etc,) precluded from presenting to other boards or staff those projects which likely will not "foreseeably be heard or reviewed by the City Commission or a City agency," including, for example, single family homes outside of historic districts, interior spaces in non-historic structures and structural work requiring only Building Department review? , Memorandum to Lawrence A. Levy May 4, 2000 Page 2 Answer: Development Review Board members cannot represent third parties on projects that require action, decision or recommendation by other City boards. That prohibition is found within the definition of "Lobbyist" as persons representing a principal who seeks to encourage the passage, defeat or modification of"(2) any action, decision or recommendation of any city board or committee." Development Review Board members similarly cannot represent third parties in connection with projects that require action, decision or recommendation by City staff, ifthe project "foreseeably will be heard or reviewed by the city commission or a city agency." The specific language is highlighted in bold below, in context in the definition of "Lobbyist": Lobbyist means all persons, finns, or corporations employed or retained, whether paid or not, by a principal who seeks to encourage the passage, defeat, or modification( s) of any of the following: (1) ordinance, resolution, action or decision of any commissioner; (2) any action, decision, or recommendation of any city board or committee; or (3) any action, decision or recommendation of the city manager, deputy city manager, assistant city managers, all department heads, all division heads, city attorney, chief deputy city attorney, deputy city attorneys, andlor all assistant city attorneys (except when such personnel are acting in connection with administrative hearings) during the time period of the entire decision-making process on such action, decision or recommendation which foreseeably will be heard or reviewed by the city commission or a city agency. Miami Beach Code ~2-459(b)(emphasis added), The Planning Director has previously opined that his senior staff are considered his designees for purposes of this ordinance. As such, if an action, decision or recommendation of the Planning Department or its senior staffforeseeably will be heard or reviewed by the city commission or a city agency, then the lobbyist provisions apply. (Actions by senior staff in reviewing development projects may be appealed by the property owner or a third party to a city board for review, See ~~118-136(a)(I), and 118-323(a), Miami Beach Code.) The same interpretation has been made by the Building Official for his senior staff, so the same lobbyist provisions apply to the processing of plans for review by i Memorandum to Lawrence A. Levy May 4, 2000 Page 3 the Building Department. While Question I asks about "projects which likely will not 'foreseeably be heard or reviewed by the City Commission or a City agency,''' most projects reviewable by staff are subject to the above appeal provisions and thus any project reviewable by staff foreseeably can be heard on appeal by a City board. For example, even with respect to the items listed in the question: "single family homes outside of historic districts, interior spaces in non-historic structures and structural work requiring only Building Department review," decisions on such projects by staff would be subject to appeal to a City board by the property owner/applicant if they disagreed with the staff decision. Thus, if a development project, through appeal from an action, decision or recommendation of staff, is possibly one that will be heard by "the city commission or a city agency" then the board member cannot process the project with staff for a third person or entity, as that would be prohibited lobbying under City Code ~2-459(a)(2), Ouestion 2. If an employee of a firm that is lobbying City staff seeks appointment to a City Board, and that employee is not personally involved in any project(s) within the City, is that person precluded from a Board appointment? Answer An employee of a firm that is lobbying City staff is not expressly included within the definition of "Associate" under ~2-459(b), which defines "Associate" as "any person or entity engaged in or carrying on a business enterprise with a city agency member as a partner, joint venturer, or co-corporate shareholder, . ,." However, this office is of the opinion that a logical constructive interpretation of the ordinance concludes that an "employee" is within the definition of business "associates," Thus, an employee of a firm that is lobbying City staff may not seek appointment to a City Board as long as the frrm continues the practice of lobbying City staff. Question 3. Are employees in the Building Department, other than the Director and/or Assistant Director, treated the same as Senior employees in the Planning Department, i.e" as the Director's designees, such that Board members are precluded from meeting with or presenting projects to them for review and approval? Memorandum to Lawrence A. Levy May 4, 2000 Page 4 Answer Upon consultation with the Building Official (the Director of the Building Department), the Building Official considers his senior staff his designees, similar to the treatment of senior employees in the Planning Department. Thus, Board members are prohibited from meeting with them on projects where the action or recommendation of the staff person foreseeably will be heard by the City Commission or a City agency if appealed, Ouestion 4. If a recently-appointed Board Member is the Architect of Record and/or Construction Administrator for a development project that is under construction within the City, would that individual be prohibited from meeting with Planning and Building Department staff relative to revisions to the project? Would an individual from their firm be similarly prohibited? Answer Under the interpretations of ~2-459 stated above, a board member would be prohibited from meeting with senior Planning and Building Department staff on any action, decision or recommendation that foreseeably will be heard or reviewed by the City Commission or a City agency. While it is unlikely that "revisions" to a project would be so heard or reviewed, the possibility exists, and such "revisions" would have to be reviewed on a case by case basis to determine such foreseeability. That said, the Florida Commission on Ethics usually treats transactions entered into before the appointment of a Board Member more liberally than a transaction entered into after such appointment, and would consider further the hardship of employing new or additional design professionals after a project has commenced construction, Thus, similar liberal treatment should be afforded board members for those projects that are under construction at the time of appointment, as long as the revisions are not material. Individuals from a Board member's firm, whether employee or Associate, would be similarly treated. Ouestion 5. If the Board member is a part owner ofa subject property, would they qualify as acting on behalf of their own property in matters regarding the property or a project being reviewed by other City Boards or staff? Answer When a Board member is a part owner of a property, such member would not qualify as acting on his or her own behalf in connection with requests or applications for t -, -\ Memorandum to Lawrence A. Levy May 4, 2000 Page 5 design or development approvals before the City. Formal requests an individual makes to the City with respect to property design or development approvals require the consent of the property's owners, Thus, requests a Board member makes on behalf of a property will be either expressly or impliedly on behalf of other property owners. It must be presumed therefore that when a Board member is making a formal request for design or development approval, in the absence of any statement to the contrary by the remaining property owners, that the request is on behalf of all the property's owners. Ouestion 6. When a Board member is a design professional (Architects, Engineers, etc.) and has prepared plans for a project within the City, may an individual other than an employee or an associate of that firm (as defined in Section 2-459 (b) of the City Code) present those plans and project to necessary Boards or staff? Individuals contemplated include independent contractors working at the firm, or design professionals from other firms. Answer Plans prepared by a Board member for a project within the City, which project is not yet approved or under construction, may be presented by independent contractors working with that Board member's firm or design professionals from other firms. The Board member may attend the public hearings on the plans before City Boards, but may not participate in the hearing on the matter, The design professional or other person presenting the plans for the Board member may privately consult with the Board member during the presentation, outside of the hearing of the Board, Of course if the Board considering the plans or project is the Board to which the Board member was appointed, that Board member cannot participate in the discussion, cannot vote on the matter, and must orally and by memorandum disclose the conflict. Given the intimate nature of meetings, the Board member cannot attend meetings with staff on the plans. cc: Jorge Gomez, Planning Director Jean Olin, Deputy City Attorney MHD\JO\GMH\gmh F:\A TTO\HELG\Projects\LegaIOpinions\Plannngethics.mem. wpd