CAO 99-12
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CITY OF MIAMI BEACH
LEGAL DEPARTMENT
Interoffice Memorandum
~
To:
JOSE SMITH
COMMISSIONER
DATE: JUNE 8, 1999
VIA: SERGIO RODRIGUEZ
CITY MANAGER
FROM: MURRAYILDUBBIN AI\ A.IV
CITY ATTORNEY , \J"\ ~- .
SUBJECT: CAO #99-12: CONFLICT OF INTEREST: EXEMPTION TO
CONFLICTING CONTRACTUAL RELATIONSmp
Pursuant to your request, I have researched the issue of whether a conflict of interest
would exist were an individual leasing commercial space from your family partnership's building
in North Miami Beach, Florida to submit and/or be awarded the bid on the City's Request For
Proposal No. 60-98/99 for valet services at the Theater of Performing Arts. For the reasons stated
more fully below, although a conflicting contractual relationship would exist, no violation of
ethical laws will occur so long as appropriate disclosure is made.
1. BACKGROUND.
You have stated that your family partnership owns a building in North Miami Beach,
Florida of which you and your wife own a 6% interest therein. One of the tenants of this
building, Marino Parking Systems Inc., is interested in submitting a bid on the City of Miami
Beach's Request For Proposal No. 60-98/99 for valet services at TapA. The RFP will be
awarded under a system of sealed competitive bidding to the lowest and best bidder, with final
selection of the successful bidder to be determined by the City Commission at a public meeting.
Other than the subject landlord/tenant relationship, neither you nor any member of your family
have any other relationship with Marino Parking Systems, Inc., nor have you any private interest
with regards to the valet services to be performed at the City's Theater of Performing Arts.
Moreover, neither you nor your family will have any participation in the determination of the bid
specs or the determination of the lowest or best bidder, nor will any influence be exerted by you
or your family concerning the City's entering into a contract for the RFP.
II. LEGAL ANALYSIS.
Section 112.313(7), Florida Statutes, entitled "Conflicting Employment or Contractual
Relationship" states as follows:
_ . _.". " .. ._, . ~". .','". .'","", ,-' r",- _" ", ';"'- ~ ,., -- -,
To:
Via:
From:
Date:
Page:
Jose Smith, Commissioner
Sergio Rodriguez, City Manager
Murray H. Dubbin, City Attorney
June 8, 1999
2
No public officer. . . of an agency shall have or hold any . . .
contractual relationship with any business entity or any agency
which is subject to the regulation of, or is doing business with, an
agency which he or she is an officer. .. .
Section 112.313(7)(a), Florida Statutes. In light of the above, a City Commissioner may not have
a contractual relationship with any business entity subject to the regulation of or doing business
with the City of Miami Beach. Inasmuch as you, through your family partnership, I have a
contractual relationship with Marino Parking Systems Inc., which entity would be subject to the
regulation of the City of Miami Beach were it chosen as the successful bidder on the subject RFP,
a per se conflicting contractual relationship would exist -- nonetheless, the Florida Statutes
specifically provide that this type of relationship shall not be violative of the law if:
1) the business at issue is awarded under a system of sealed
competitive bidding to the lowest or best bidder;
2) there has been no participation in the determination of the bid
specs or the determination of the lowest or best bidder by the
official or his family, and no influence has been exerted by the
official or his family concerning entering into a contract; and
3) "the official, prior to or at the time of the submission of the bid,
has filed a statement. . . with the Supervisor of Elections of the
County in which the agency has its principal office, . . . disclosing
the official's interest, or the nature of the official's spouse or child,
and the nature of the intended business."
1 Although you have only a 6% interest in the family partnership, the Florida State
Commission on Ethics has failed to construe any exemption from the ethics laws for
"insignificant" conflicting contractual relationships. See, Commission On Ethics Opinion 91-24
(April 1991) holding the fact that a public employee's ownership interest was small compared to
the amount of outstanding stock did not excuse the existence of a conflicting contractual
relationship.
To:
Via:
From:
Date:
Page:
Jose Smith, Commissioner
Sergio Rodriguez, City Manager
Murray H. Dubbin, City Attorney
June 8, 1999
3
Section I 12.313(12)(b)3. Accordingly, you will be in compliance with ethics law upon your
abstaining2 from any participation in the determination of the bid specs or award of the bid, as
well as filing a disclosure statement with the Dade County Supervisor of Elections, which
statement shall disclose your interest and your family's interest in the partnership which owns the
commercial office building in North Miami Beach and its relationship with the subject RFP
bidder, while explaining the relationship of the intended business which is the object of the RFP.
f:\attolSalllsheila\conflictlsmth-val.mem
2 Abstaining from the subject vote further requires you to make appropriate disclosure
under the State voting conflict law:
". . . Such public officer shall, prior to the vote being taken, publicly
state to the assembly the nature of the officer's interest in the matter
from which he or she is abstaining from voting and, within 15 days
after the vote occurs, disclose the nature of his or her interest as a
public record in a memorandwn filed with the person responsible for
recording the minutes of the meeting, who shall incorporate the
memorandwn in the minutes."
gI12.3143(3)(a), Florida Statutes.