95-21823 Reso •
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RESOLUTION NO. 95-21823
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA AMENDING
RESOLUTION NO. 95-21556 REQUIRING DISCLOSURE OF
ALL EX-PARTE COMMUNICATIONS REGARDING
MATTERS THAT ARE THE SUBJECT OF QUASI-JUDICIAL
PROCEEDINGS AND RE-ESTABLISHING A PUBLIC
DISCLOSURE PROCEDURE FOR EX-PARTE
COMMUNICATIONS WITH PUBLIC OFFICIALS.
WHEREAS, Section 5 Article I of the State Constitution gives the people the right peaceably
to assemble, to instruct their representatives, and to petition for redress of grievances; and
WHEREAS,the public should be able to voice its opinions to local elected public officials;
and
WHEREAS, government in Florida is conducted in the sunshine pursuant to Chapter 286,
Florida Statutes; and
WHEREAS,local elected and public officials are presumed to perform their duties in a lawful
and proper manner; and
WHEREAS, quasi-judicial decision making must be based on competent, substantial evidence
of record; and
WHEREAS,the legislative policy of promoting direct access to local government officials
and the judicial policy proscribing ex-parte communications with decision makers can be balanced
and accommodated by procedures requiring disclosure on the record of ex-parte communications
with elected and public officials acting as decision makers in quasi-judicial settings; and
WHEREAS, on April 19, 1995, the Mayor and City Commission of the City of Miami Beach
adopted Resolution No. 95-21556 which approved procedures for conducting quasi-judicial hearings,
including procedures relating to ex-parte communications; and
WHEREAS, Section 286.0115, Florida Statutes was thereafter created by the State
Legislature which authorizes direct access to local public officials relating to pending quasi-judicial
actions which shall not be deemed prejudicial to such actions provided the local government adopts
and establishes disclosure procedures set forth therein or by adopting an alternative process for
disclosure; and
WHEREAS,the Mayor and City Commission of the City of Miami Beach deem it advisable
and in the best interest of the citizens and residents of the City to re-adopt those procedures relating
to ex-parte communications set forth in City of Miami Beach Resolution No. 95-21556 and to adopt
the following additional procedures in accordance with Section 285.0115, Florida Statutes in order
to enable direct access to local officials which is non-prejudicial to the quasi-judicial process.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
Section 1. The following procedure is hereby established for all ex-parte communications
with any local public official who recommends or takes quasi-judicial action as a member of a City
board or the City Commission and which relate to a quasi-judicial action pending before the official:
a) The subject matter of any ex-parte communication,
together with the identity of the person, group or
entity making the communication, shall be disclosed
and made a part of the record on file with the City
prior to final action on the matter.
b) Any written ex-parte communication subject to this
procedure shall be placed in and made a permanent
part of the record on file with the City prior to final
action on the matter.
c) Members of the City Commission and other City
boards and commissions may conduct investigations
and site visits and may receive expert opinions
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regarding quasi-judicial action pending before them.
In addition to any other requirements of Chapter 286,
Florida Statutes relating to government in the
sunshine, the existence and subject of such activities
shall be made a part of the record on file with the City
prior to final action on the matter.
d) Any ex-parte communication or activity regarding a
pending quasi-judicial matter and not physically made
a part of the record on file with the City and available
for public inspection prior to the public meeting on the
matter shall be orally stated and disclosed on the
record at the public meeting prior to the vote on the
matter. Persons who have contrary opinions to those
expressed in any ex-parte communication shall be
given a reasonable opportunity to refute or respond to
the communication.
e) All procedures set forth in Exhibit "A" are re-adopted.
f) Adherence to the procedures set forth herein shall
remove the presumption of prejudice arising from ex-
parte communications with local public officials.
g) This Resolution does not subject local public officials
to Part III of Chapter 112, Florida Statutes for not
complying with the requirements hereof.
Section 2. This Resolution shall take effect immediately upon adoption.
PASSED and ADOPTED this 21st da . November 1995.
Aga..
MAYO
ATTEST:
FORM APPROVED
TY CLE D
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QUASI-JUDICIAL PROCEDURES
Purpose
It is the purpose of these rules to provide a fair, open and impartial procedure for the
consideration by members of the City Commission, the Board of Adjustment, Planning
Board, Design Review Board,and Historic Preservation Board of quasi-judicial matters in
the course of quasi-judicial proceedings.
II. Definitions
A. Applicant - an individual , corporation or other authorized legal entity filing an
application or an appeal which initiates a quasi-judicial proceeding, including City
staff and the City Commission and Boards.
B. Application (matter) - an application for a site-specific land use plan amendment,
rezoning,variance,conditional use permit,design review approval,or other request
for a quasi-judicial proceeding or appeal as authorized by the City's Zoning
Ordinance.
C. City Staff- an employee of the City of Miami Beach.
D. Ex-parte communication- any written or oral communication with members which
may directly or indirectly influence the disposition of an application,other than those
made on the record during a pubic hearing.
E. Member-a City Commissioner or a member of the Board of Adjustment, Planning
Board, Design Review Board or Historic Preservation Board.
III. Ex-Parte Communication
Members are prohibited from discussing matters with applicants,interested parties,lobbyists,
other members or any other third party.
A. Written communications-all written communications received by a member relevant
to a pending matter shall be turned over to the Secretary or Clerk of the Board,and
the Office of the City Attorney, entered into the official file and transmitted to the
applicant. The communication shall also be disclosed at the next public hearing on
the matter.
B. Oral Communications - when a member determines that an oral communication
relates to a pending matter, the member shall immediately terminate the
communication. The member shall reduce any conversation to writing, identifying
the party, date, time, place and content of the conversation, and transmit the
EXHIBIT A —
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information to the Secretary or Clerk of the Board,the Office of the City Attorney,
and the applicant. The communication shall also be disclosed at the next public
hearing on the matter.
C. Communication with City staff-members may discuss matters with City staff for the
purpose of clarifying procedures relating to any hearing.
D. View of Property - members may visit sites which are the subject of a pending
matter. However, communications with applicants, owners, surrounding property
owners,or third parties are prohibited.
IV. Quasi-Judicial Proceedings
A. Legal Representation-
1. Applicants - Applicants may be represented by legal counsel.
2. Board - the Board or City Commission shall be represented by the City
Attorney's Office.
3. Staff-staff may be represented by outside counsel when appearing before the
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Board or City Commission during an appeal of any matter Or when appearing
as an applicant.
B. Participants at Hearings
All who testify on any matter must sign in and be sworn by the presiding
officer. All persons testifying subject themselves to cross-examination.
Each person, other than salaried members of City staff, who address the
Board shall give the following information.
(a) Name;
(b) Address;
(c) Whether they speak for themselves, a group of persons,or a
third party;if the person says that they represent an organization,they
shall also indicate whether the view expressed by the speaker
represents an established policy of the organization approved by the
board or governing counsel; and
(d) Whether there is compensation by the persons or persons on
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whose behalf they speak; and
(e) Whether they or any member of their immediate family has
a personal financial interest in the pending matter.
C. Conduct of Hearing- the order of hearing shall be as follows:
1. The Chair shall read a preliminary statement once at the beginning of the
quasi-judicial public hearing agenda, announce the particular agenda item,
and open the public hearing. The Chair shall conduct the meeting and all
questions shall be through the Chair.
2. The applicant,witnesses, staff, and all participants asking to speak shall be
sworn excluding attorneys, unless they testify.
3. The Board shall decide any parliamentary objections and objections to
evidentiary matters with the advice of the City Attorney.
4. The staff shall present its report,offer it into evidence,and have it made part
of the record. .
5. The applicant shall present its case.
6. Participants in support of the application shall present their testimony and any
evidence.
7. Opposition shall have the right to cross-examine individual speakers.
8. The Board may ask questions of any speaker.
After the presentation in favor of the matter,the hearing shall proceed as follows:
9. Participants in opposition to the application shall present their testimony and
evidence.
10. The Applicant shall have the right to cross-examine individual speakers.
11. The Board may ask questions of any speaker.
12. Rebuttal by staff, if requested. Staff shall be subject to cross-examination.
13. Any other member of the public may testify and present evidence, and are
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subject to cross-examination.
14. Rebuttal by the Applicant, if any.
15. The Chair closes the public hearing. The Board shall discuss the matter and
render a decision(no further presentations or testimony shall be permitted).
Following the final disposition of the application,all evidence admitted at the
hearing, the application file, all staff reports, and the adopted order
promulgating the decision of the Commission shall be maintained in a
separate file constituting the record of the application. The record shall be
kept in the custody of the appropriate staff at all times during the pendency
of the application. The record will be made available to the public for
inspection upon request at any time during normal business hours. All quasi-
judicial hearings shall be recorded. A court reporter may be retained and
paid for by any person to take down the proceedings. Any person may order
and pay for a transcript of the proceedings. Any such retained court reporter
shall identify himself/herself to the clerk.
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OFFICE OF THE CITY ATTORNEY
624 ify esscomme twate4
F L O R 1 D A
MURRAY H. DUBBIN 'ark,,
Telephone: (305) 673-7470
City Attorney °`� Telecopy: (305) 673-7002
COMMISSION MEMORANDUM NO. S51-9 S
DATE: NOVEMBER 21, 1995
TO: MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
FROM: MURRAY DUBBIN
CITY ATTORNEY
JOSE GARCIA-PEDROSA
CITY MANAGER
SUBJECT: QUASI-JUDICIAL PROCEDURES
On April 19, 1995, Resolution No. 95-21556 was adopted which set forth quasi-judicial
procedures to be used in the review of all site specific development applications. These procedures
are to be used by the Planning Board, Board of Adjustment, Design Review Board, Historic
Preservation Board and, at times, the City Commission when sitting in a quasi-judicial capacity to
hear site specific development applications. These procedures were adopted to ensure that improper
ex-parte communications do not occur with regard to these proceedings. Subsequently, Section
286.0115 of the Florida Statutes was created by the State legislature which authorized direct access
to local public officials relating to pending quasi-judicial actions which would not be deemed
prejudicial to such actions provided the local government adopts the disclosure procedures set forth
therein or by adopting an alternative process for disclosure.
RECOMMENDATION:
The Office of the City Attorney recommends that the procedures previously adopted on April
19, 1995 be re-adopted and that the additional procedures set forth in Section 286.0115, Florida
Statutes, be adopted to enable direct access to local officials which would not be prejudicial to quasi-
judicial proceedings.
AGENDA
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DATE ) 1-2-1-9 5 Convention Center Drive—FourthMaor— Miami Bi