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R9H-Discuss Consideration Of Written Report Of Debarment InvestigatorMIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachll.gov COMMISSION MEMORANDUM TO: Mayor Philip Levine and Members FROM: Jimmy L. Morales, City Manager DATE: February 12, 2014 SUBJECT: THE MAYOR AND CITY COMM SION'S CONSIDERATION OF THE WRITTEN REPORT AND RECOMMENDATION OF THE DEBARMENT INVESTIGATOR BACKGROUND The City Attorney's Office notified the City Manager that Robert Meyers may be retained to investigate the allegations contained in Commissioner Wolfson's July 10, 2013, Request for Debarment concerning the activities of Robert Wennet, principle of UIA Management, LLC, who was alleged to have engaged in unregistered lobbying in the City of Miami Beach. The request for debarment further alleged that a fraudulent affidavit was submitted to the City of Miami Beach, regarding the convention center project. Pursuant to Section 2-405(b) of the City of Miami Beach Code upon completion of the investigation surrounding the request for debarment completed by Robert Meyers, the City Manager shall forward the report to the Mayor and City Commission at a regularly scheduled meeting. Accordingly, attached is the report and recommendations provided by Mr. Meyers. RECOMMENDATION The mayor and city commission shall consider the Investigator's written report and recommendation and determine whether: (1) A hearing for debarment or suspension should be conducted; or (2) No probable cause exists for the allegations in the written request for debarment or suspension and the matter should be dismissed; or (3) Further investigation should be made prior to considering whether a hearing should be conducted or the matter should be dismissed; or (4) Other action, as may be appropriate, should be taken. If the Mayor and City Commission determine that a hearing should be conducted, the Mayor and City Commission shall forward the report to the Debarment Committee or, at its option and by majority vote, the Mayor and City Commission may elect to hear the matter as the trier of fact instead of the Debarment Committee. JLM I KGB I AD T:IAGENDA\2014\February\ProcurementlConsideraton of Recommendation of Debarment Investigator.doc 908 Agenda Item R C,/t Date 1-""/2~/l( Memo Weiss Serota Heitman Pastoriza Cole & Boniske, P.L. To: Jimmy Morales, City Manager, City of Miami Beach From: Robert Meyers, Esq. Date: November 5, 2013 Re: Wolfson Request for Debarment of UIA Management, LLC and Affiliates Background: City Commissioner Jonah M. Wolfson provided you with correspondence dated July 10, 2013 wherein he requested debarment of UIA Management, LLC and its Affiliates, alleging that Robert Wennett as a principal of UIA Management engaged in unregistered lobbying on at least three separate occasions and further alleges that Mr. Wennett was untruthful in an affidavit that he submitted in his company's response to the redevelopment of the Convention Center RFQ. In consultation with the Office of the City Attorney, your office retained my services to investigate the allegations contained in Commissioner Wolfson's July 10, 2013 letter and to make a recommendation concerning the claim that Mr. Wennett's actions warrant debarment. Timeline: 1) On January 25, 2007, Robert Wennett, the President of UIA Management LLC, filed a lobbyist registration form with the City Clerk, paid a fee of $150 and listed 1111 Lincoln Road as the specific lobbying issue. 2) Robert Wennett, as President of UIA Management, and the City of Miami Beach entered into a Development Agreement with UIA on April 11, 2007 for the Pedestrian Mall on the 1100 Block of Lincoln Road. 3) On September 2, 2008, Robert Wen nett and Jeffrey Weinstein, also a principal of UIA, paid the City Clerk's Office $250. The receipt noted that such payment was for Lobbyist Registration Renewal 2008-09. 4) On December 29, 2009, City Manager Jorge Gonzalez informed the City Commission that he created the Convention Center Expansion and Enhancement Steering Committee to advise the City and Arquitectonica with recommendations for any enhancements and expansion of the 909 convention center and to assist in guiding the master planning process. Robert Wennett was identified as one of the appointees to this committee. 5} In accordance with the Development Agreement, the City and UIA entered into a Management Agreement of the 1100 Block of Lincoln Road on January 11, 2010, defined as the Lincoln Road Maintenance Agreement. 6) On January 5, 2011, Robert Wennett and Jeffrey Weinstein made a payment to the City Clerk's Office of $1000 covering lobbying activities from October 1, 2010 to September 30, 2011. The receipt was made out to Robert Wen nett and Jeffrey Weinstein, UIA Management. 7) On February 8, 2012 payment was made to the City Clerk's Office in the amount of $1,000 and represented the annual registration payment for both Wennett and Weinstein for the period from October 1, 2011 to September 30, 2012. The form did not list the issue or the name of the client. 8) The Convention Center RFQ was advertised in February 8, 2012 and the City Cone of Silence took effect on that date. 9) On October 22, 2012, a Lobbyist Registration Form was completed by Robert Wennett and filed with the City Clerk in the amount of $1,550. The receipt prepared by the Clerk's Office indicated that the payment represented annual renewal and also listed the following issues: RFP 14- 11/12 (The Lincoln Road RFP); RFQ 22-11/12 (Convention Center) and the Lincoln Road Maintenance RFP. 10} The City Commission selected the Tishman Group to serve as the Master Development Team on July 17, 2013 for the Miami Beach Convention Center Redevelopment Project. UIA Management was part of the submittal and is one of the team members. Relevant Laws/Opinions/Reports: 1} Sections 2-397 -2-406 of the City Code (Division 5 -Debarment of Contractors from City Work) 2) Sections 2-481-2-485.3 of the City Code (Division 3 -Lobbyists} 3) Section 2-11.l(s) of the Miami-Dade County Code --Lobbyist Registration and Reporting Ordinance 4) Section 2-486 of City Code (Cone of Silence) 5) Miami-Dade Commission on Ethics and Public Trust RQO 05-114 6) Miami-Dade Commission on Ethics and Public Trust Investigative Report K 12-093 Discussion: I will examine each allegation separately: 1} The February 24, 2011 meeting of the Finance and Citywide Projects Committee (hereinafter "FCWPC") included a discussion of the Lincoln Road Maintenance Agreement (Agenda Item 6). An individual identifying himself as Robert Wennett made a presentation to the Committee 910 concerning the Lincoln Road Maintenance Agreement. Since he was clearly encouraging the Committee to take action with respect to this item, his appearance would otherwise represent a lobbying activity. The City of Miami Beach defines a lobbyist in Section 2-481 of the City Code and includes within the definition of lobbyist all persons employed or retained by a principal who seek to encourage the passage, defeat or modification of any action, decision, recommendation of any city board or committee. Under the circumstances, Mr. Wennett meets the definition of a lobbyist. However, an opinion from the Miami-Dade Commission on Ethics and Public Trust reaches a different conclusion when the advocacy is tied to an existing agreement with the government In RQO 05-114, the Ethics Commission opined that a company or its representative may not be required to register as a lobbyist to negotiate extensions or amendments to an existing contract that are contemplated under the original agreement, but would be required to register to discuss issues that are deemed to be substantive in nature and not covered by the original agreement. In the Development Agreement entered into by Wennett on behalf of UIA and the City of Miami Beach, the parties agreed that the scope of the Lincoln Road Maintenance Agreement could be expanded to cover the management of the maintenance of other sections of Lincoln Road beyond the 1100 Block. Moreover, in memorandum from the City Manager to the members of the FCWPC prior to the February 24, 2011 meeting regarding the Lincoln Road Maintenance Agreement, the City Manager by way of background advised the Committee that the parties were permitted to expand the type of services provided on the 1100 Block of Lincoln Road and further advised the Committee that the City was in discussions with UIA to expand the services provided on the 1100 block to the remainder of Lincoln Road from Collins Avenue to the Bay. Thus, it is apparent from the actions of the parties, the language contained in the original development agreement and the scope of work being considered by FCWPC at its February 24, 2011 meeting, Mr. Wennett was not required to register as a lobbyist when speaking to the Committee on the issue of expansion of the Lincoln Road Maintenance agreement for the same type of services to other portions of Lincoln Road. Since it is my opinion that Mr. Wennett did not need to register when presenting on Agenda Item 6, I will not address the question of whether or not he was registered for this matter when he appeared before the Committee on February 24, 2011. 2) A second claim of unregistered lobbying allegedly occurred at the same meeting. The contention is that Mr. Wen nett was not properly registered with he lobbied the Committee with respect to Agenda Item 2 (redevelopment of Miami Beach Convention Center}. The threshold question is whether Mr. Wennett was required to register when he presented to the Committee on February 24, 2011 to address the Committee on the Convention Center item. According to City records, RFQ 22-11/12 (Redevelopment of the Miami Beach Convention Center District) was advertised on February 8, 2012 -at which time the City's Cone of Silence took effect. It is worth noting that Mr. Wen nett and UIA were part of a proposal team that was eventually selected by the City Commission on July 17, 2013 to serve as the master development team for this project. Although it is conceivable that lobbying could have occurred prior to the advertisement of the abovementioned RFQ, the sole claim of unauthorized lobbying allegedly took place at the February 24, 2011 meeting. The facts do not support a finding that Mr. Wennett was engaging in unregistered lobbying when he presented at the Committee meeting on this issue. 911 Miami Beach Code Section 2-483(a) states that a public officer, employee or appointee or any person in contractual privity with the city who only appears in his official capacity shall not be required to register as a lobbyist. The City Manager appointed Mr. Wennett to the Convention Center Expansion and Enhancement Steering Committee in 2009. The audio tape of the February 24, 2011 meeting confirms that when the Convention Center item was discussed, Mr. Wen nett identified himself as a member of the Convention Center Expansion and Enhancement Steering Committee before he presented to the FCWPC. As such, he falls within the exception to the lobbying registration requirement because he was appearing before the Committee as an appointee of another city committee. Moreover, the discussions at the meeting concerning the Convention Center were at a relatively preliminary stage at that time and there was no RPQ or other competitive solicitation in place in February 2011, so in effect, Mr. Wennett would not meet the definition of a lobbyist with respect to that matter even if the "public official/appointee" exception is disregarded. Consequently, I find that Mr. Wennett was not required by the City Code to register as a lobbyist when he appeared before the Committee concerning the Convention Center item. 3) The third instance of unauthorized lobbying alleged by Commissioner Wolfson was to have taken place at the February 8, 2012 City Commission meeting during a discussion of the Lincoln Road Maintencmce Agreement (Agenda Item R7F). Based on the City's actions leading up to this date -the Manager's recommendation and the recommendation of the FCWPC -the matter before the City Commission was virtually identical to the item considered by other City decision- makers and entities, that is, to expand the scope of services contemplated by the Development Agreement. As stated above, a person is not required to register as a lobbyist when presenting on a matter covered under the original agreement. Therefore, Mr. Wen nett was not improperly lobbying when he appeared at the City Commission meeting on February 8, 2012 to address the Lincoln Road Maintenance Agreement item. 4} The final allegation against Mr. Wennett as a representative of UIA is that he was untruthful in an affidavit that he supplied the City in connection with the Convention Center Redevelopment RFQ when he asserted that he has not engaged in any lobbying activities regarding the RQO in violation of the City's Lobbyists Laws. The evidence presented by Commissioner Wolfson is the audio of the February 24, 2011 FCWPC meeting at which Mr. Wennett purportedly lobbied regarding the development of the Miami Beach Convention Center. My report considered the allegations of improper lobbying as to the Miami Beach Convention Center in a previous section and reached the conclusion that Mr. Wennett complied with the City's Lobbying Laws. Consequently, I find that Mr. Wennett's ilssertions contained in the affidavit concerning adherence to the City's Lobbying Laws are in fact truthful. Lastly, I find it is within the scope of this report to comment on whether the allegations if proven to be true would be grounds for the City to move forward with a debarment action against UIA. The allegations contained in Commissioner Wolfson's letter of July 10, 2013 are within the scope of the debarment ordinance because unregistered lobbying is a violation of a city ordinance and such ordinance contains a penalty section that permits a debarment action against the violator (see City Code Section 2-485.1} However, separate and apart from my conclusions that no city ordinance was violilted by Mr. Wennett or UIA, Section 2-404 of the City Code (Causes for Debarment} states a debarment action against a city contractor can only proceed if a violation of a city ordinance is found. Based upon 912 my review, the City of Miami Beach lacks the authority to find a party has violated its own lobbying ordinance. Rather, such authority resides with the Miami-Dade Commission on Ethics and Public Trust. Absent an order from the Miami-Dade Commission on Ethics finding such a violation or an admission by the party that he violated the City's lobbying rules, I find that the causes for debarment under the city ordinance do not exist and a debarment action against UIA Management should not proceed. 913