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RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, RELATING TO INVESTIGATION OF ALLEGED
VIOLATIONS OF THE CITY'S CHARTER AND THE CODE OF ORDINANCES BY
ANY ELECTED OFFICIAL; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, The City of South Miami has a history and indeed there are provisions in the Code
and the Charter which appear to encourage investigations of City officials by either the City Manager
and /or the City Attorney; and
WHEREAS, Loyalty to a client prohibits undertaking representation directly adverse to that
client's interest. Loyalty to a client is also impaired when you cannot consider, recommend, or carry out
an appropriate course of action because of your other responsibilities or interests; and
WHEREAS, The City Commission deems inappropriate for the City Manager and the City
Attorney to be the responsible party to investigate any alleged violation by any elected official.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. That City Commission hereby declares that the City Manager and the City
Attorney shall not be the responsible party to investigate any alleged violation by any elected official.
Section 2. If any word, phrase, clause, section or subsection of this Resolution is ruled
invalid or unconstitutional by a court of competent jurisdiction, the invalidity thereof shall not affect the
validity of the remaining portions of this Resolution.
Section 3. All sections or parts of the Code of Ordinances, or Resolutions that conflict with
this Resolution herein are repealed, but only to the extent of the conflict.
Section 4. This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this of 2010.
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM
CITY ATTORNEY
:eWtSI N
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Beasley:
Commissioner Palmer
Commissioner Newman:
Commissioner Sellars:
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Page I of 1
MY
To: Roger M. Carlton
Acting City Manager
From: Laurence Feingold RE: Code of Conduct
City Attorney
December 8, 2009
You and I recently discovered that even as appointed officials, we had to subscribe in
writing to the Code of Conduct and certify to the City Clerk in writing that we will carry
out these standards delineated in our Code of Ethics when carrying out our
responsibilities.
The addition of you and I as appointed, rather than elected, officials in following the
Code of Ethics in our specific responsibilities is consistent with Section 112.313 (7) (a)
Florida Statutes wherein nothing in our employment can impede the full and faithful
discharge of our public duties.
To put it another way, our public duties make us fiduciaries to those we serve, namely the
Honorable Mayor and City Commission. This City has a history and indeed there are
provisions in the Code and the Charter which appear to encourage investigations of City
officials by either the City Manager and/or the City Attorney. Indeed, the public records
of our City reflect numerous such investigations by previous Managers and Attorneys.
Notwithstanding language authorizing such investigations, I deem the conducting of such
investigations by you and I against our Board of Directors and/or the City Commission,
to create a prohibited conflict of interest.
How can we as professionals act as advocates against our clients who ask us many
questions and in turn rely upon our answers in the performance of their duties?
Rule 4 -1.8 b of The Rules of Professional Conduct as to client/lawyer relationships states:
"(b) Using Information to Disadvantage of Client
A lawyer. shall not use information relating to the representation of a client
to the disadvantage of the client unless the client gives informed
consent..."
Even beyond the above Rule, loyalty to a client prohibits undertaking representation
directly adverse to that client's interest. Loyalty to a client is also impaired when you
cannot consider, recommend, or carry out an appropriate course of action because of your
other responsibilities or interests.
For the foregoing reason, and because we are fiduciaries, I deem it most inappropriate
when one of our Commissioners asks us to investigate the conduct of another
Commissioner. As long as we are giving professional advice to Commissioners, it is
simply not appropriate for us to turn against the same Commissioner that we are giving
advice to.
Our Courts have held that:
"The term conflict is not inherently ambiguous, and avoiding conflicts of
interest is a well understood and traditionally accepted ethical norm."
(Zerweck vs. Commission on Ethics, 409 So. 2nd 57, Fla. Dist. Ct. App. 4th
DCA 1982)
If we add to the conflict of interest situation, the fact that neither one of us has the ability
nor training to conduct investigations, then, in that event, it becomes even clearer that the
soundest policy for us to follow is to simply report any alleged charges against of any of
our Commissioners to the FDLE for appropriate action.
Nothing herein is meant to imply that we are limited in taking appropriate action against
either outsiders or City staff under us. However, those who employ us and seek
professional advice and counsel from us have a right to expect that we avoid conflicts of
interest wherein we could use the information obtained from them as a subsequent sword
against them to conduct an investigation into possible unethical conduct, which can
manifest itself in infinite forms.
Indeed Section 8A -2.1.2 (a) of our Code of Conduct, which is a declaration of policy
states that the...
"Confidence of the public is essential to the conduct of free government."
Query: Is not the confidence of the Commission in their Appointed Officials also
essential?
Section 112.311 (2) Florida Statutes states:
"...the law against conflict of interest must be so designed as not to
impede unreasonably or unnecessarily the recruitment and retention by
government of those best qualified to serve..."
CITY OF NORTH LAUDERDALE
INTER- OFFICE CORRESPONDENCE
MEMORANDUM NO. 2009-053
TO: Mayor Jack Brady
Members of the City Commission
CC: Richard Sala, City Manager
Ambreen Bhatty, Assistant City Manager
FROM: Samuel S. Goren, City Attorney $$e!
Jacob G. Horowitz, Assistant City Attorney PVi
DATE: March 26, 2009
RE: City of North Lauderdale ( "City ") / Gary Frankel Censure Resolution
At the March 17, 2009 regular meeting of the City Commission, the City Attorney's
Office was directed to prepare a resolution initiating censure proceedings and an
investigation into alleged violations of the City Charter and Code of Ordinances by
Commissioner Gary Frankel. The resolution will be presented to the City Commission by
the City Attorney for consideration at its March 31, 2009 regular meeting.
The resolution sets forth the general allegations against Commissioner Frankel as
presented at the March 17, 2009 meeting, and authorizes the hiring of W. Earl Hall,
Esquire as a special attorney investigator. Mr. Hall has capably and competently
performed similar functions for the City in the past, and the City Attorney's Office
recommends the engagement of Mr. Hall to conduct an investigation into this matter.
The consideration and adoption of the resolution is the first procedural step in the censure
process. Please be advised that members of the City Commission, as well as members of
the City Administration may be subject to questioning during the investigation of the
allegations set forth against Commissioner Frankel.
Please contact our office if there is any addition information that we can provide
SSG /JGH:lm
H9790287.NDMEM0 2009\2009 -057 (Frankel Censure Cover Memo).doc
I RESOLUTION NO. 2009-
2 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
3 NORTH LAUDERDALE, FLORIDA, PROVIDING FOR THE
4 INITIATION OF AN INVESTIGATION FOR CENSURE BASED
5 UPON CHARGES OF VIOLATIONS OF THE CITY'S CHARTER
6 AND CODE OF ETHICS BY COMMISSIONER GARY FRANKEL;
7 SETTING FORTH THE CHARGES OF THE CITY COMMISSION
8 AGAINST CITY COMMISSIONER GARY FRANKEL; PROVIDING
9 FOR THE APPOINTMENT OF W. EARL HALL, ESQUIRE AS A
10 SPECIAL INVESTIGATING ATTORNEY TO CONDUCT AN
11 INVESTIGATION INTO THE CHARGES LEVIED BY THE CITY
12 COMMISSION AGAINST COMMISSIONER FRANKEL;
13 REQUIRING A REPORT BE SUBMITTED TO THE CITY
14 COMMISSION BY THE, SPECIAL INVESTIGATING ATTORNEY
15 AT TIIE CONCLUSION OF THE INVESTIGATION, WHICH
16 REPORT SHALL INCLUDE A RECOMMENDATION AS TO
17 WHETHER THE CITY COMMISSION SHOULD FIND
18 COMMISSIONER GARY FRANKEL IN VIOLATION OF THE
19 CITY'S CHARTER AND CODE OF ETHICS; PROVIDING THAT
20 THIS RESOLUTION SHALL SERVE AS NOTICE TO
21 COMMISSIONER GARY FRANKEL OF THE CHARGES AGAINST
22 HIM; PROVIDING FOR CERTAIN MATTERS RELATING TO THE
23 INVESTIGATION AND CHARGES; PROVIDING FOR CONFLICT;
24 PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN
25 EFFECTIVE DATE.
26 WHEREAS, the governing body for the City of North Lauderdale is comprised of
27 four (4) City Commissioners, elected from four (4) geographical districts in the City, and a
28 Mayor elected at- large; and
29 WHEREAS, the City's elected officials, upon assuming office, take an oath of
30 office, in which the elected official swears that he or she shall "well and faithfully perform
31 the duties of the office" for which he or she was elected; and
32 WHEREAS, the City's governing body is bound by a Code of Ethics, codified in
33 Section 2 -35 of the City's Code of Ordinances, which sets forth certain standards of
34 behavior and conduct for the City's elected officials to ensure effective governance with
35 dignity; and
36 WHEREAS, Commissioner Gary Frankel is an elected City Commissioner and
37 former mayor who has taken the oath of office and is bound by the City's Code of Ethics;
38 and
I WHEREAS, Section 3.1 of the City Charter creates a City Manager -City
2 Commission form of government where the City Commission serves as the legislative body
3 and policy maker for the City; and
4 WHEREAS, under this governmental paradigm, the City Commission takes action
5 as a uniform body governed by the vote of the majority of its members, and individual
6 members of the City Commission are not permitted to take official action absent an
7 authoritative vote of a majority of their colleagues; and
8 WHEREAS, Section 3.5(b) of the City Charter expressly prohibits members of the
9 City Commission from interfering with the appointment or removal of members of the City
10 Administration who are hired by the City Manager; and
11 WHEREAS, on or about September 9, 2005, Commissioner Gary Frankel wrote a
12 letter on official City letterhead, with the City Seal thereon, in his capacity as a City
13 Cormnissioner, adverse to the City and in favor of a former City employee who he allegedly
14 knew was recently discharged and engaged in a dispute with the City; and
15 WHEREAS, on or about September 13, 2005, Commissioner Frankel prepared a
16 second letter on City letterhead and in his capacity as City Commissioner on behalf of the
17 same former employee praising her job performance and detailing the "high esteem" in
18 which he viewed the employee; and
19 WHEREAS, the letters, particularly the September 9, 2005 letter, were allegedly
20 used to aid the former employee as evidence in a lawsuit filed against the City, and the letter
21 had an adverse impact on the defenses presented by the City during the course of litigation;
22 and
23 WHEREAS, the former employee's lawsuit (Broward Circuit Court Case No. 07-
24 09748 11) cost the taxpayers of the City of North Lauderdale in both legal fees as well as the
25 City staff time that was required to defend against the action; and
26 WHEREAS, various members of the City Commission, including Commissioner
27 Frankel, were called upon to testify during the former employee's lawsuit against the City;
28 and
29 WHEREAS, Commissioner Frankel's testimony and deposition for the trial, as well
30 as the previously referenced letter, was used by the former employee to support her lawsuit
31 against the City which alleged age discrimination and other retaliatory action taken by the
32 City against the employee; and
33 WHEREAS, other members of the City Commission, having the same knowledge
34 and insight into the matter as Commissioner Frankel, provided testimony which had no
35 adverse affect on the City's legal arguments; and
36
1 WHEREAS, the conduct of Commissioner Frankel as it relates to the dispute
2 between the City and the former employee, reflect negatively on the civility and intellect of
3 the City Commission; and
4 WHEREAS, the actions of Commissioner Frankel are contrary to the best interests
5 of the City and its residents and taxpayers, and are undertaken for unknown reasons without
6 proper authority under the City's Charter and contrary to the City's Code of Ethics; and
7 WHEREAS, the actions of Commissioner Frankel bring embarrassment upon the
8 City and the City Commission, reflect negatively on him and the City Commission as a
9 whole, and do not advance the public interest or inure to the public's benefit; and
10 WHEREAS, Section 2 -52 of the City's Code of Ordinances provides that the
11 meetings of the City Commission shall be governed by Robert's Rules of Order on any
12 subject not specifically addressed in the City's Code; and
13 WHEREAS, Robert's Rules of Order provides for the sanctioning of members of an
14 organization's board upon the levying of charges against that individual by the board; and an
15 opportunity for the charged individual to have a bearing on the charges; and
16 WHEREAS, Section 3.16 of the City's Charter authorizes the City Commission to
17 initiate an investigation into the affairs of the City and the conduct of any City office; and
18 WHEREAS, the City Commission finds that an investigation pursuant to the City's
19 Charter should be undertaken by special counsel, retained by the City to investigate the
20 charges against Commissioner Frankel as set forth herein, who shall have the powers of
21 investigation set forth in the Charter, including authority to subpoena witnesses, administer
22 oaths, take testimony and require the protection of evidence; and
23 WHEREAS, the City Commission hereby appoints a Special Investigating Counsel,
24 who shall conduct an investigation into the charges set forth herein, and provide a report to
25 the City Commission on the charges and a recommendation as to appropriate findings by the
26 City Commission.
27 NOW, THEREFORE, 13E IT RESOLVED BY THE CITY COMMISSION OF
28 THE CITY OF NORTH LAUDERDALE, FLORIDA, THAT:
29 SECTION 1. The foregoing "WHEREAS" clauses are hereby ratified and
30 confirmed as being true and correct and incorporated herein by this reference.
31 SECTION 2. The City Commission hereby charges City Commissioner
32 Gary Frankel with violations of the City's Charter and Code of Ethics, by virtue of his
33 conduct and behavior regarding a former employee engaged in a lawsuit against the City for
34 whom he advocated on behalf of Commissioner Frankel's actions regarding this matter are
35 contrary to best interests of the City and the general public, reflect negatively on the City
Commission and public service, and conflict with his duties and obligations of office. This
conduct includes, but is not limited to:
3 a. Commissioner Frankel's preparation of a letter to a former City employee
4 who was engaged in a dispute with the City on official City letterhead containing the City
5 Seal, and in his capacity as a City Commissioner, detailing action adverse to the City's
6 position in a lawsuit filed by the same employee against the City without formal action of
7 the City Commission authorizing him to do so. This letter further allegedly reflects the
8 interference of one member of the City Commission into the operational oversight of an
9 employee falling wider the purview of the City Manager. This conduct presumptively
10 violates Section 3.5 of the City Charter and Section 2 -35 of the City's Code of Ordinances.
11 b. Commissioner Frankel's preparation of a letter of recommendation on behalf
12 of the former employee on official City letterhead and in his capacity as a City
13 Commissioner without formal action of the City Commission authorizing him to do so. This
14 conduct presumptively violates Section 2 -35 of the City's Code of Ethics.
15 SECTION 3. The City Commission hereby retains and appoints W. Earl
16 Hall, Esquire as special Investigating Counsel, to conduct an investigation of the charges
17 against Commissioner Frankel pursuant to Section 3.16 of the City's Charter. The Special
18 Investigating Counsel shall have the authority to subpoena witnesses, administer oaths, take
19 testimony and require the preservation of evidence as necessary for an investigation of the
20 charges. At the conclusion of the investigation, the Special Investigating Counsel shall
21 present a report to the City Commission, which report shall contain a recommendation on
22 the charges. The Special Investigating Counsel shall defend the report at a hearing during
23 which Commissioner Frankel may present a defense to the charges.
24 SECTION 4. This Resolution shall serve as notice to Commissioner
25 Frankel of the charges levied against him by the City Commission. The City Clerk shall
26 ensure that a certified copy of this Resolution is provided to Commissioner Frankel.
27 SECTION 5. Upon the conclusion of the investigation and hearing, should
28 the City Commission uphold the charges, it may impose a sanction upon Commissioner
29 Frankel, including but not limited to reprimand or censure.
30 SECTION 6. All resolutions or parts of resolutions in conflict herewith
31 are hereby repealed to the extent of such conflict.
32 SECTION 7. If any clause, section, other part or application of this
33 Resolution is held by any court of competent jurisdiction to be unconstitutional or
34 invalid, in part or application, it shall not affect the validity of the remaining portions or
35 applications of this Resolution.
0
I SECTION 8. This Resolution shall become effective immediately upon
2 adoption.
3 PASSED AND ADOPTED BY THE CITY COMMISSION OF THE CITY OF
4 NORTH LAUDERDALE, FLORIDA, THIS DAY OF
5 2009.
6
7
8
9
10
I 1 VICE MAYOR JOHN R. CANGEMI
12 ATTEST:
13
14
15 PATRICIA VANCHERI, Interim City Clerk
16
17 APPROVED AS TO LEGAL FORM:
18
19
20 SAMUEL S. GOREN, City Attorney
21
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4
Y Y
1 ORDINANCE NO.
2
3 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
4 CITY OF SOUTH MIAMI, FLORIDA, AMENDING CHAPTER 8A "CODE OF
5 ETHICS" OF THE CITY'S CODE OF ORDINANCES, ADDING NEW
6 SECTION 8A -7 ENTITLED "INVESTIGATION OF VIOLATIONS OF CITY'S
7 CHARTER PROVIDING THAT ANY INVESTIGATIONS BE OUTSOURCED
8 AND REFERRED TO AN OUTSIDE ATTORNEY AS THE CITY'S
9 DESIGNATED REPRESENTATIVE TO CONDUCT INVESTIGATIONS OF
10 ALLEGED VIOLATIONS OF THE CITY'S CHARTER AND CODE OF
11 ORDINANCES BY ELECTED OFFICIALS'; PROVIDING FOR
12 SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE
13 DATE.
14
15 WHEREAS, the City Commission desire to amend the City's Code of Ordinances
16 Chapter 8A, entitled "Code of Ethics ", by adding a new section 8A -7 entitled "Investigations of
17 Alleged Violations of the City's Charter by Elected Officials, providing that any investigations
18 be outsourced and referred to an outside attorney, as the City's designated representative to
19 conduct investigations of alleged violations of the City's Charter and Code of Ordinances by
20 Elected Officials; and
21
22 WHEREAS, the City Commission deems it inappropriate for either the City Manager or
23 the City Attorney to be designated as its representative to conduct investigations of alleged
24 violations of the city's Charter and Code of Ordinances by Elected Officials; and
25
26 WHEREAS, it shall be the policy of the City of South Miami to appoint an outside
27 attorney on a case -by -case basis to conduct investigations of the City's Charter and Code of
28 Ordinances by Elected Officials, and perform any necessary acts in conjunction therewith.
29
30 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
31 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
32
33 Section 1. That City Commission desire to amend the City's Code of Ordinances
34 Section 8A by adding a new Section 8A -7 as follows:
35
36 Sec. 8A -7. Investigations of Alleged Violations of the City's Charter by Elected
37 Officials providing that investigations be outsourced and referred to an outside attorney
38 who is an active member of the Florida Bar in good standing as its representative to
39 conduct investigations of violations of the City's Charter and Code of Ordinances.
40
41 (a) Investigations. The City Commission declares as its policy that it will designate a
42 member of the Florida Bar in good standing, not currently employed by the City, as
43 its representative to conduct investigations of alleged violations of the City's Charter
44 and Code of Ordinances by an elected official.
45
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(b) Said designated attorney shall be appointed by a case -by -case basis by a majority vote
of the City Commission, providing for the initiation of an investigation based upon
charges of violations of the City's Charter and the Code of Ordinances.
(c) Said appointed attorney hereby known as "a special investigating attorney" shall be
empowered to conduct an investigation into any alleged violation of the City's
Charter and Code of Ordinances by Elected Officials, and to submit a report to the
City Commission at the conclusion of the investigation which report shall include a
recommendation as to whether or not a City Commission should find said elected
official in violation of the City's Charter and Code of Ordinances.
(d) Upon receipt of the report by the "special investigating attorney ", the City
Commission may upon a majority vote provide for censure of said elected City
official, or may refer the charges against such elected official to the FDLE or other
appropriate Agency for further action.
Section 2. If any word, phrase, clause, section or subsection of this Ordinance is
ruled invalid or unconstitutional by a court of competent jurisdiction, the invalidity thereof shall
not affect the validity of the remaining portions of this Ordinance.
Section 3. All sections or parts of the Code of Ordinances, or Resolutions that
conflict with this Ordinance herein are repealed, but only to the extent of the conflict.
Section 4. This Ordinance shall take effect immediately upon adoption.
PASSED AND ADOPTED this 12009.
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM
CITY ATTORNEY
WAMy DocumentsTlections 2010 \Ordinmm.Investigations(3).doe
l �
MAYOR
1St Reading —
2nd Reading —
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Beasley:
Commissioner Palmer:
Commissioner Newman:
Commissioner Sellars:
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