HomeMy WebLinkAboutExhibitCITY OF MIAI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Honorable Mayor p g. Members of e City Commission
FROM: Jorge L. Fernand Atto
DATE: September 11, 2007
RE: Proposed Resolution for City Commission Meeting
September 11, 2007 — Authorizing the engagement of outside
counsel to represent Commissioner Marc Sarnoff in the matter of
The Related Companies of Florida, Inc. v. Marc David Sarnoff,
Case No. 07-27975 CA 24
File ID No, 07-01158
This Resolution seeks authorization to engage outside counsel to represent Commissioner
Marc Sarnoff in the matter of The Related Companies of Florida, Inc. vs. Marc David Sarnoff,
Case No, 07-27975 CA 24,
Background
On April 26, 2007, three of the five Miami city commissioners, voted to approve a zoning
change to allow the Related Companies to potentially build a high rise condo project on a
parcel of land used as a parking lot at Mercy Hospital, on Biscayne Bay in Coconut Grove (the
Grove Bay Residences Condo Project). Opponents, including Commissioner Sarnoff, have
publicly stated that the towers would be out of scale with the area and would add density,
traffic problems and noise. Several civil suits appealing the zoning decision have been filed by
the opponents the Vizcayarns and Grove activists. The Related Companies filed a two count
complaint in circuit court against Commissioner Sarnoff. The lawsuit alleges that a
memorandum written by Sarnoff in May of this year contains untrue statements which
nonetheless he willfully and wantonly disseminated to third parties for the sole purpose of
damaging the reputation of the Related companies and to influence pending litigation in which
the Related is involved. Sarnoff takes the position that the memo was solely a "memory aid" to
record a conversation with an unnamed former public official, and he is thus resisting
Related's effort to compel public disclosure of the memo.
In count I of the complaint the Related sued Commissioner Sarnoff under the Public
Records Act seeking to compel production of a public document that allegedly Sarnoff wrote to
himself ostensibly concerning the Grove Bay Residences condo project. The complaint asks the
court to enter a writ of mandamus compelling Sarnoff to produce the "public record" and seeks
other relief including attorney's fees and costs. In count II of the complaint the Related sued
Commissioner Sarnoff for defamation and libel and seeks damages in excess of S15,000.00.
Consequently, Commissioner Sarnoff has requested that the City provide an attorney to defend
him in this civil action,
Honorable Mayor and Members of the City Commission
The Related Companies of Florida, Inc. v. Marc David Sarnoff
Case No.: 07-27975 CA 24
September 11, 2007 — Page 2
Defense of Civil Actions against Public Officers
It is well established in Florida under statutory law and the common law that public
officials are entitled to legal representation at the public expense to defend themselves against
litigation arising from the performance of their official duties while serving a public purpose.
Thornber v. City of Ft. Walton Beach, 568 So.2d 914 (FIa.1990); , 111.07 F.S. (2006). The
purpose of this common law rule and statutory entitlement is to avoid the chilling effect that a
denial of representation might have on public officials performing their duties properly and
diligently. In Thornber the Supreme Court announced a two part test for lower courts to utilize
when determining whether a public official is entitled to reimbursement of legal fees. For public
officials to be entitled to representation at public expense, the litigation must (1) arise out of or in
connection with the performance of their official duties and (2) serve a public purpose.
In this case the complaint filed by Related is asking the court to compel the production of
documents, including an "Inter -office Memorandum" that allegedly Commissioner Sarnoff
drafted to himself ostensibly concerning a matter of public concern. Thus, Commissioner
Sarnoff is being sued for an act or omission arising out of and in the scope of his function as a
public official. Both the coininon law and § 111.07 of the Florida Statutes would authorize the
City Commission to provide an attorney to defend Commissioner Sarnoff in this civil action.
The Office of the City Attorney finds that there is a substantial risk that the representation
of Commissioner Sarnoff in this matter will be materially limited by our responsibilities in the
representation of the City of Miami in the following cases wherein the City of Miami and the
Related Companies are aligned in advocating a position that seeks to uphold the vote taken by
the City Commission on the Grove Bay Residences condo project:
The Vizcayans, Inc., Grove Isle Association, et al v. City of Miami; Case No.:
07-2498GM ! 07-2499GM (DOAH) (Matter No.: 07-1124) (RSR). These cases
challenge the City's compliance with the Florida Growth Management Act
(Chapter 163, Florida Statutes) concerning Ordinance No.12911, a small scale
amendment to the Future Land Use Map for a parcel of land at 3663 S. Miami,
Avenue. These two cases have been just consolidated into one case by the State
Division of Administrative Hearings (DOAH.)
Grove Isle Association, et al v. City of Miami; Appellate Division Circuit Court
Case No.: 07-299 AP (Matter No.: 07-1212) (RSR). This case is an appeal of
the re -zoning of a portion of the Mercy Hospital Complex and the use issuance
of a Major Use Special Permit (MUSP) which allows for the development of
three (3) non -hospital related multi -story residential condo buildings on that site.
The Vizcayans, Inc., et al v. City of Miami; Appellate Division Circuit Court
Case 07-298AP (Matter No.: 07-1194) (RSR), This is an action for a writ of
certiorari. This case is an appeal by Writ of Certiorari requesting that City of
Miami ordinance re -zoning this property be quashed and that the re -zoning of
88938 (3)
Honorable Mayor and Members of the City Commission
The Related Companies of Florida, Inc. v. Marc David Sarnoff
Case No.: 07-27975 CA 24
September 11, 2007 — Page 3
this parcel be quashed, that is, set aside by the Court based on the legal grounds
raised in the pleadings.
The Vizcayans, Inc., et aL v. City of Miami; Circuit Court Case No.: 07-17332
CA 13 (Matter No.: 07-1195) (RSR). This is a complaint for Declaratory and
Injunctive Relief under 163.3215 (3), F.S.. This is an original action challenging
the City's approval of the Major Use Special Permit (MUSP) for the high rise
condominium at 3663 South Miami Avenue.
Grove Isle Association, et al. v. City of Miami; Circuit Court Case No.: 07-
17456 CA 31 (Matter No.: 07-1196) (RSR). This is a complaint for Declaratory
and Injunctive Relief for the City's rezoning of the subject property at 3663
South Miami Avenue from Governmental and Institutional "GI" to Multi -Family
Residential "R-4" use.
It would thus, be appropriate for the City Commission to authorize the engagement of
outside counsel to represent Commissioner Sarnoff in this matter at this time. Note that under
§111.07, F.S. (2006), any attorney's fees paid from public funds for any official who is found to
be personally liable by virtue of acting outside the scope of his employment, or acting in bad
faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard for human
rights, safety, or property, may be recovered by the city.
Enclosure(s)
cc: Pedro G. Hernandez, City Manager
Elvi Gallastegui, Agenda Coordinator
88938 (3)