HomeMy WebLinkAboutMemo - City AttorneyCITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM.
TO: Honorable Mayor and nbeof tl ity Commission
FROM: Victoria Mendez, City At
DATE: January 9, 2015
RE: Outside Counsel Fees for Luis Cabrera - $10,923.93
Matter ID No.: 14-2879
File ID No.: 14-00698
Mr. Luis Cabrera, formerly the Assistant City Manager/Chief of Operations, has made a
request for reimbursement of attorney's fees incurred in relation to Miami -Dade Commission on
Ethics and Public Trust Complaint — C-13-29, which centered on the hiring of Mr. Cabrera's
sibling, and that sibling's wife, for positions in the City of Miami Parks Department. Mr. Cabrera
retained an attorney, Mr. Mark Herron, Esq., who successfully defended him against charges of
unethical conduct before the Miami -Dade Commmission on Ethics. In its investigation, the
Commission determined that there was insufficient evidence to support a finding of probable
cause and dismissed the case.1
According to Florida's Supreme Court, "public officials are entitled to legal
representation at 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, 916-17 (Fla. 1990). Likewise, Florida's Third District Court of
Appeal has recognized that "the primary determination as to the allowance of counsel [is] placed
in the respective governmental unit rather than with the judiciary upon challenge by a private
litigant." Nuzunz v. Valdes, 407 So. 2d 277, 279 (Fla. 3d DCA 1981). Hence, such a
determination is most appropriately left to the City Commission, especially where factual or
policy considerations play a crucial role in the decision -making process.
Under common law, two conditions must be satisfied to activate the entitlement to legal
representation at public expense: (1) the litigation must arise out of or in connection with the
performance of the officer's official duties and (2) serve a public purpose. Chavez v. City of
Tampa, 560 So. 2d 1214 (Fla. 2d DCA 1990); Lomelo v. City of Sunrise, 423 So. 2d 974, 976
(Fla. 4th DCA 1982). This applies to ethics proceedings as well. See Ellison v. Reid, 397 So. 2d
352, 354 (Fla. 1st DCA 1981).
In this case, the first condition concerns Mr. Cabrera's official duties as Assistant City
Manager/Chief of Operations. The job description for this position includes operational
1 Along with its finding of no probable cause, the Miami -Dade Commission on Ethics issued a Letter of
Instruction recommending that "[01 open City positions should be advertised" to avoid the appearance of
impropriety.
Honorable Mayor and Members of the City Commission
January 9, 2015
Page 2
responsibility for several City departrnents.2 The Parks Department was one of the City
departments under Mr. Cabrera's official purview at this time.
The second condition requires that "public funds may not be expended for other than
public purposes." Markham v. State Dept. of Revenue, 298 So. 2d 210, 211 (Fla. 1st DCA 1974);
Maloy v. Bd. of County Coin'rs of Leon County, 946 So. 2d 1260, 1265 (Fla. 1st DCA 2007). A
public purpose is one that "excludes any taint of `private interest.' Chavez v. City of Tampa, 560
So. 2d at 1218. For example, a city council member was not entitled to representation at public
expense for voting on a matter in which she had a private, pecuniary interest although it was part
of her official duties. Id. In contrast, a county property appraiser was serving a public purpose
when accused of "improperly [giving] examination papers to his employees while attending a
training program sponsored by the Department of Revenue" as they were attending a seminar to
improve their professional skills for the county's benefit. Ellison v. Reid, 397 So. 2d at 353;
Maloy v. Bd. of County Com'rs of Leon County, 946 So. 2d at 1264. Here, Mr. Cabrera
successfully defended against the ethics charge and no evidence of improper interference or
pressure concerning the hiring of his family members was found. Hence, the final question is
whether that hiring served a public purpose.
As noted above, the determination of whether a public purpose is served is primarily for
the City Commission. See Nuzum v. Valdes, 407 So. 2d at 279. The invoice for Mr. Cabrera's
attorney's fees has already been reviewed by my office and it has been determined that the billed
hours and rates are reasonable. Funds, in the amount of $10,923.93, may be allocated from
Account No.: 00001.980000.531010.0000.00000 — Professional Services — Legal (Non -
Departmental).
VM/BLM/MH/yei
Enclosure(s)
2 Viewable online at:
http://agency. govennmentj obs. com/miamifl/default. cftn? action=viewe1assspec&classSpecID=7221
48 &agency=1726&viewOnly=yes
Doc. No.: 503851