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HomeMy WebLinkAboutBack-Up DocumentsMIAMI-DADE COMMISSION ON ETHICS AND PUBLIC TRUST COMMISSIONERS Dr. Judith Bernier, CHAIR Wifredo "Willy" Gort, VICE CHAIR Nelson C. Bellido Esq. Dava J. Tunis, Esq. Lourdes B. Fernandez, Esq. April 2, 2024 Annie Perez, CPPO Chief Procurement Officer/Director of the Procurement Department City of Miami Miami Riverside Center (MRC) 444 SW 2nd Ave Miami, FL, 33130 Sent via email: annieperez@miamigov.com EXECUTIVE STAFF Jose J. Arrojo EXECUTIVE DIRECTOR Radia Turay ADVOCATE Loressa M. Felix GENERAL COUNSEL Re: INQ 2024-62, Limitations on Doing Business with the City of Miami, Florida, Section 2-11.1(c), County Ethics Code Dear Ms. Perez, Thank you for contacting the Miami -Dade Commission on Ethics and Public Trust and requesting our guidance regarding relatives of City of Miami employees becoming City vendors. Background: You advise that you are currently the Chief Procurement Officer and the Director of the Procurement Department for the City of Miami. In that position, you direct and supervise staff and professionals engaged in a variety of procurement functions, in accordance with applicable local and federal laws, regulations, ordinances, and professional ethical practices. You advise that on December 1, 2023, in your capacity as Chief Procurement Officer, Ms. Militse Padilla, Venue Manager for the City of Miami Tower Theater ("Theater"), provided you three (3) quotes from two (2) different vendors for the Theater's stage extension for your department to review and advise as to how to proceed. Two (2) quotes from two (2) different vendors, VIBE Home Design, LLC and RCPA Builders, Inc., were submitted for the construction of the stage, and one (1) quote, from Richard Cortes, P.A., was submitted for the design of the stage extension. RCPA Builders, Inc. and Richard Cortes, P.A. are companies owned and operated by Richard Cortes, your brother-in-law. Based on the familial relationship, you recused yourself via email from the procurement process for the Theater stage extension and delegated your authority to both 701 Northwest 1st Court • 8th Floor • Miami, Florida 33136 • (305) 579-2594 • ethicsgmiamidade.gov Assistant Director Yadissa Calderon, Goods and Services Team, and Assistant Director Fernando Ponassi, Architecture and Engineering and Construction Services Team. You advise that you have no role or financial interest in either company. As part of your recusal, Ms. Calderon would oversee and approve any purchase order ("PO") concerning the stage extension construction procurement process which would also be handled by her team under the City's General Building/Engineering and Specialty Trade Contractors Pool, which is a City contract consisting of various general building/engineering and specialty trade contractor pools, each of which is comprised of pre -qualified vendors and allows for the addition of new vendors upon the meeting of the qualifications for that respective pool. Mr. Ponassi would oversee the stage extension design procurement process. Ms. Calderon would also approve any PO for the stage extension design, as she is the only individual in procurement that holds your delegated authority to approve POs in the City's Oracle software system. Issue: Whether the Miami -Dade County Conflict of Interest and Code of Ethics Ordinance ("County Ethics Code") or the City of Miami Code would prevent your brother-in-law from contracting with the City of Miami, Procurement Department. Discussion and Opinion: Section 2-11.1(c)(1) of the County Ethics Code provides that [municipal]' employees and their immediate family members shall not enter into any contract or otherwise transact any business with the [City], "except as provided in subsections (c)(2) through (c)(6)." The County Ethics Code creates the limited exception that [municipal] employees and their immediate family members may contract with the [City] so long as (1) entering into the contract would not interfere with the employee's full and faithful discharge of his or her [municipal] duties; (2) the employee does not participate in determining the subject contract requirements or awarding the contract; and, (3) the employee's job responsibilities and job description will not require him or her to be involved with the contract in any way, including its enforcement, oversight, administration, amendment, extension, termination, or forbearance. See County Ethics Code § 2-11.1(c)(2). Additionally, this limited exception from the broad prohibition against contracting with the [municipality] does not authorize a [municipal] employee or his or her immediate family member to contract with the [municipal] department that employees said [municipal] employee. See id. Nevertheless, the term immediate family as defined pursuant to Section (b)(9) of the County Ethics Code, does not include brother-in-law. 1 Section 2-11.1(a) of the County Ethics Code provides: This section shall ... constitute a minimum standard of ethical conduct and behavior for all .. . employees of municipalities in the County insofar as their individual relationships with their own municipal governments are concerned. References in the section to County personnel shall therefore be applicable to municipal personnel who serve in comparable capacities to the County personnel referred to. z The term "immediate family" shall refer to the spouse, domestic partner, parents, stepparents, siblings, half -siblings, step -siblings, children, and stepchildren of the person involved. See County Ethics Code § 2-11.1(b)(9). Page 2 of 5 Section 2-612(a) of City of Miami Code provides, in pertinent part, that: (a) No person included in section 2-6113 shall enter into any contract or transact any business with the city or any person or agency acting for the city, or shall appear in representation of any third party before any board, commission or agency of which such person is a member. No employee shall appear in any capacity on behalf of any third party before any board, commission or agency of the city. Any such contract or agreement entered into or appearance made in violation of this section shall render the transaction voidable. Based on the plain language of Sections 2-611, 2-612(a), and 2-612(b) of the City of Miami Code, you would be prohibited from entering into any contract or transaction with the City, however your brother -in law is not covered by the definition of family members in Section 2-612 of the City of Miami Code and thus would not be a prohibited person.4 Further, published opinions from the Commission on Ethics and from the Office of the City Attorney for the City of Miami have determined that Section 2-612 of the City of Miami Code prohibited a company from contracting with the City, where a prohibited person held a controlling financial interest in the company. In INQ 13-242, the Commission on Ethics held that the Assistant City Manager's spouse's employer, an engineering company, was allowed to contract with the City of Miami because Assistant City Manager's spouse did not have a controlling financial interest in the company. In 3 "This article shall be applicable to and binding upon every officer, official and employee of the city, including every member of any board, commission or agency of the city." City of Miami Code § 2-611. Additionally, "Mlle word `person' appearing in subsection (a) of this section shall include officers, officials and employees as set forth in section 2-611 hereof and the following family members of such "person": spouse, son, daughter, parent, brother or sister." City of Miami Code § 2-612(b). 4 By contrast, the term "relative" as used in the Florida Code of Ethics, is only found in the State nepotism law at Section 112.3135 (Restriction on employment of relatives) which defines a relative as "an individual who is related to a public officer or employee as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half- brother, half-sister, grandparent, great grandparent, grandchild, great grandchild, step grandparent, step great grandparent, step grandchild, step great grandchild, person who is engaged to be married to the public officer or employee or who otherwise holds himself or herself out as or is generally known as the person whom the public officer or employee intends to marry or with whom the public officer or employee intends to form a household, or any other natural person having the same legal residence as the public officer or employee. Notably, the term "relative" is more expansive. Traditionally, "relative" has been regarded as a person who is connected with another or others by blood or marriage. While "immediate family" generally refers to the members of your family who are only once removed from you (e.g., siblings, parents, and children), a "relative" includes persons connected with by blood or affinity (generally within the third degree). However, Section 112.313(a) of the Florida Code of Ethics, entitled "Doing Business with One's Agency," which seems most pertinent to the conduct referenced herein explicitly mentions an employee's spouse and child as prohibited persons but not a relative. Page 3 of 5 INQ 19-54, the Commission on Ethics opined that a law firm whose partner was a member of the City of Miami Planning Zoning and Appeals Board could contract to provide the City with legal services as the partner did not have a controlling financial interest in the law firm. In City of Miami Attorney Opinion 2005-05, the City of Miami could not contract with the real estate development company due to a conflict of interest pursuant to Section 2-612 of the City of Miami Code, because one of the company's principals was also a City of Miami Planning Advisory Board member. Lastly, in City of Miami Attorney Opinion 2008-002, the City of Miami had no conflict of interest in proceeding with a Community Development Block Grant contract with a company for technical support even though the executive director of the company was a City Board Member, because neither the Board Member nor their immediate family owned a controlling financial interest in the company. As you have no involvement or financial interest in your brother-in-law's company, and he is not included in the definition of a prohibited person or immediate family member, his company would not be prohibited from contracting with the City. See also INQ 23-139. However, Section 2-11.1(g) of the County Ethics Code relating to exploitation of official position, prohibits municipal employees from using their public positions to secure special privileges or exemptions for themselves or others. Consequently, you must be diligent to avoid using public resources to benefit Mr. Cortes, his clients, and/or his companies. Finally, the County's Conflict of Interest and Code of Ethics provides the minimum standard of conduct for public officials. It does not directly address "appearance of impropriety" issues that should guide the actions of all public servants. Avoiding an appearance of impropriety is even more important given your public employment as the City's Chief Procurement Officer. Consistent with this aspirational standard, you are encouraged to keep in place your suggested safeguards regarding Mr. Cortes' companies. This opinion is limited to the facts as you presented them to the Commission on Ethics and is limited to an interpretation of the County Ethics Code only and is not intended to interpret state laws. Any comment regarding state law is included for informational purposes only. Questions regarding state ethics laws should be addressed to the Florida Commission on Ethics. Thank you again for consulting with the Ethics Commission and do not hesitate to contact me directly if you should require further assistance. Sincerely, oressa Felix, Esq. General Counsel cc: All COE Legal Staff George K. Wysong, Deputy City Attorney Xavier E. Alban, Assistant City Attorney Page 4 of 5 INQs are informal ethics opinions provided by the legal staff after being reviewed and approved by the Executive Director. INQs deal with opinions previously addressed in public session by the Ethics Commission or within the plain meaning of the County Ethics Code. RQOs are opinions provided by the Miami -Dade Commission on Ethics and Public Trust when the subject matter is of great public importance or where there is insufficient precedent. While these are informal opinions, covered parties that act contrary to the opinion may be referred to the Advocate for preliminary review or investigation and may be subject to a formal Complaint filed with the Commission on Ethics and Public Trust. Page 5 of 5