Ord. No. 15-06-1883ORDINANCE NO. 15 -06 -1883
AN ORDINANCE OF THE MAYOR AND CITY
'COMMISSION OF THE CITY OF SOUTH MIAMI,
FLORIDA RELATING TO ETHICS, AMENDING
CHAPTER 8A OF THE CODE OF ORDINANCES OF THE
CITY OF SOUTH MIAMI, ENTITLED "CODE OF
ETHICS "; PROVIDING FOR THE DEFENSE OF
ELECTED OFFICIALS; DEFINITIONS; PROVISIONS
FOR DEFENSE OF ELECTED OFFICIALS; REQUEST
PROCESS AND APPROVAL OF DEFENSE;
AUTHORIZATION; RESERVATION OF RIGHTS AND
IMMUNITIES; APPLICABILITY; PROVISIONS WHEN
COMPLAINT OR ALLEGATIONS ARE FOUND TO BE
MALICIOUS, FRIVOLOUS OR GROUNDLESS;
- PROVIDING FOR REPEAL, SEVERABILITY;
PROVIDING FOR INCLUSION IN THE CODE; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Mayor and City Commission of the City of South Miami find
that in order to encourage qualified persons to serve the City of South Miami, it is
necessary to protect such persons from certain legal expenses incurred in protecting
themselves from allegations of violating State, County, or Municipal ethical standards
and guidelines, while acting in the course and scope of their service to the City of South
Miami; and,
WHEREAS, at chapter 8A, the city adopted its Code of Ethics, governing the
ethical standards and guidelines for elected and employed city public officials; and,
WHEREAS, the city reserved section 8A -6 and seeks to now create a new section
8A -6, which section shall provide the procedures, definitions and details on approving the
defense of the city's elected public officials; and,
WHEREAS, the Mayor and City Commission of the City of South Miami find
that the adoption of this Ordinance is in the best interest of the City of South Miami; and
Ord. No. 15 -06 -1883
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT:
Section 1. Recitals Adopted. That all of the above stated recitals are hereby
adopted, confirmed and incorporated by reference into this ordinance.
Section 2. Chapter 8A of the City Code is amended as follows:
8A -6 moved. Defense of Official in Ethics Matters.
(a) Definitions. When used in this section, the following words shall mean as
indicated:
The Term "Official" shall mean solely the following the Mayor and
all members of the City Commission.
2. The term "City Fund' shall mean only funds appropriated for
expenditure by the City Commission.
3. The Term "Counsel" shall mean the attornev independently selected
by the Official for the purpose of defending the Official in actions or
proceedings in accordance with this section. Counsel shall be
licensed to practice law in Florida, experienced in ethics defense,
and otherwise adequately qualified for the purpose of such
representation.
4. The term "Legal Expenses" shall mean reasonable attorney's fees
and necessary defense expenses directly incurred in defending an
Official in accordance with this section.
The term "Legal Defense" shall mean the services provided by
Counsel in defending an Official accordance with this section.
6. The term "Reimbursable Costs" shall mean approved necessary
incidental expenses, including, but not limited to travel expenses
directly incurred by the Official in association with the defense of
actions or proceedings in accordance with this section.
(b) Defenses officials. Upon the request of the City Official (the "Official ")
the City may, in its discretion, provide for the Legal Defense of any action or
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Ord. No. 15 -06 -1883
proceeding brought against such Official for acts or omissions arising out of and in
the course and scope of the Official's function, when such Official is charged with
a violation of any provision of the Code of Ethics for Public Officers and
Employees, Part III, Chapter 112, Florida Statutes Section 2 -11.1 Miami -Dade
County Code, or chapter 8A -1 through 5 of the City's ethics ordinances. The
provision of Legal Defense is limited to the payment of Legal Expenses to
Counsel and the payment of approved Reimbursable Costs to the Official incurred
for the purpose of defending actions or proceedings in accordance with the
provisions of this section. This section shall not apply to any action brought or
initiated by the City against an official.
(c) Request for Approval. A written request for the provision of Legal Defense
(the "Request ") shall be submitted by the Official and reviewed in accordance
with the following procedure:
A Request shall be submitted to and reviewed by the City Manager.
A Request shall be submitted after the Official is served with a
complaint, notice, charge, summons, process or other initiating
pleading,
A Request shall include the name, address, resume, and hourly rate
of Counsel, and a copy of the complaint, notice, charge, summons,
process or other initiating pleading;
4. The City Manager shall recommend approval or denial the Request
in writing within ten (10) days after receipt of such Request. The
City Manager's recommendation is subject to the City Attorney's
concurrence that said Request is consistent with the requirements of
this section.
The City Commission shall consider and vote on the
recommendation of the City Manager and City Attorney to fund
Legal Expenses and Costs as provided for under Section 8A- 6(e)(1).
(d) Authorization. The City Manager is hereby authorized to expend City
Funds upon the review and approval of a Request for the payment of Legal
Expenses and Reimbursable Costs in accordance with subsection 8A -6(b). The
authorization to expend City Funds shall not extend to my Appeal or other judicial
review without additional authorization of the City Commission. The expenditure
of City Funds shall be paid from a specific City account established in the City
budget for the purposes of this section or from other funds designated for Mayor
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Ord. No. 15 -06 -1883
or Commission use. No funds of the City, other than City Funds as defined in
subsection 8A -6(a), shall be used for the Legal Defense of an Official. The
expenditure of City Funds for the payment of Legal Expenses and Reimbursable
Costs shall be subject to the following_
(1) Counsel of the Official shall on a monthly basis submit all current
bills for Legal Expenses to the City's finance department in a format
approved by the City Attorney and Finance Director. The Official
shall on a monthly basis submit all current bills for Reimbursable
Costs to the City's finance department in a format approved by the
City Attorney and Finance Director;
(2) The City Manager and City Attorney shall review and approve all
submitted bills prior to the pa may the City;
(3) Upon approval of submitted bills, the City Manager shall provide for
direct payment to Counsel for Legal Expenses and to the Official for
Reimbursable Costs. Payment shall be made on a monthly basis
during the pendency of the action or proceeding pursuant to Section
218.70, Florida Statutes, et. seq.
(4) The City Manager shall on a monthly basis provide a copy of all
approved bills to the City Clerk for filing and retention as a public
record and for public inspection, subject to an applicable exemption.
(e) Reservations oughts and immunities.
The provision of the Legal Defense of an Official as provided in
subsection 8A -6(b), including those acts for which the defense may
be provided and the extent of City funds which may be expended
shall be solely within the discretion of City Commission.
2. The City Commission may deny or revoke approval of the Request if
they determine that the request is beyond the scope of this section
the applicable ethics ordinance, or inconsistent with the purposes of
this section,
The City Commission reserves the right to deny the Request when
the Official has failed to select qualified Counsel or when the
proposed fee schedule is deemed unreasonable;
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Ord. No. 15 -06 -1883
4. The City Commission reserve the right to revoke approval of the
Request when the Official fails to cooperate in the defense of such
action or proceeding;
The Official shall reimburse the City for any and all City funds
expended for payment of Legal Expenses and Reimbursable Costs
when it is determined that the alleged act or omission was taken
outside the course or scope of the duties of the Official, or when the
Official was adjudicated guilty of the alleged violation. The City
reserves unto itself the right to seek reimbursement and /or recovery
from the Official of the City Funds expended for payment of Legal
Expenses and Reimbursable Costs in accordance with this section
when it is determined that the alleged act or omission was taken
outside the course or scope of the duties of the Official, or where
such Official was adjudicated guilty of the alleged violation;
6. Nothing in this section shall authorize the City Commission to
provide for the Legal Defense of an Official where the alleged act or
omission was taken outside the course or scope of the duties of the
Official or where the Official has acted in bad faith with malicious
purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety or property'.
Nothing in this section shall authorize the City Commission to
provide for the Legal Defense of an Official where it is alleged that
said Official failed to comply with applicable financial and gift
disclosure requirements mandated by Chapter 112, Florida Statutes,
Section 2 -11.1, Miami -Dade County Code, or the City's ethics code
concerning financial and gift disclosure;
8. Nothing in this section shall be construed as a waiver by the City or
any Official of any claim of immunity, including sovereign
immunity, applicable to any action;
9. Any Official who submits a Request and is subsequently provided a
Legal Defense at the expense of the City in accordance with this
section shall be prohibited from seeking further remuneration from
the City for any expenses incurred by said Official during or
resulting from the defense of any action or proceeding contemplated
by this section;
10. Where an Official fails to avail him /herself of the provisions of this
section, and no Legal Defense was provided at the expense of the
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Ord. No. 15 -06 -1883
City, nothing herein shall prohibit such Official from seeking
reimbursement from the city for legal expenses incurred in the
successful defense of a violation or violating of any provision of the
Code of Ethics for Public Officers and Employees, Pat III, Chapter
112, Florida Statutes, Section 2 -11.1 Miami -Dade County Code, or
said Official is subsequently acquitted, or the charge or charges
against said Official are dismissed.
)q Applicability. The provisions of this section shall apply to all actions and
proceeding pending at the time of or instituted after the effective date of this
section. As used herein, an action shall be construed to be pending where the
action has not been tried, or if tried where the judgment has not become final
by reason of the completion of any appellate proceedings;
(g) Malicious. Frivolous or Groundless Allegations. In accordance with Section
112.317 (8), Fla. Stat. or Section 2- 1074(1) Miami -Dade County Code, where it
is determined that the complaining party filed a frivolous or groundless
complaint or filed a complaint with malicious intent to injure the reputation of
the Official by f, Cline the complaint with knowledge that the complaint contains
one or more false allegations or with reckless disregard for whether the
complaint contains false allegations of fact material to a violation, the City
may seek recovery of Legal Expenses and Reimbursable Costs incurred by the
City from the complaining party in the name of the Official, or as subro eg e of
the official.
Section 3. Severability. If any word, clause, phrase, sentence, paragraph or
section of this ordinance is held to be invalid by a court of competent jurisdiction, such
declaration of invalidity shall not affect any other word, clause, phrase, sentence,
paragraph or section of this ordinance.
Section 4. Codification. This ordinance shall be codified and included in the
Code of Ordinances.
Section 5. Effective Date. This ordinance shall be effective upon passage by the
City Commission on second reading.
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Ord. No. 15 -06 -1883 f
PASSED AND ADOPTED this lay of 2006.
ATTEST:
l Wv Vv
\`-CITY CLERK --"°V
READ AND APPROVED AS TO FORM
Lui igueredo,
agin Gallop & Figueredo, P.A.
Office of City Attorney
):\My DocumentAresolutions \Ordinance Ethics Defense revised.doc
I "Reading— 06/06/06
2nd Reading — 06/18/06
COMMISSION VOTE:
5 -0
Mayor Feliu:
Yea
Vice Mayor Wiscombe
Yea
Commissioner Beckman:
Yea
Commissioner Birts:
Yea
Commissioner Palmer:
Yea
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