Certainly it is not unethical to do so, especially when the conflict is noted on the record and the Councilperson excludes themselves from the vote. But, does it pass the smell test? Probably not, and especially when the Council waives competitive bidding to do so.
Last Monday our Council approved a contract with the Fuentes Group for lobbying services. I like Jose Fuentes. I can't tell you if he is the best person for the job, but he certainly has contacts within the County. I do have some concerns about his representations of other small cities in Miami-Dade County including the Village of Virginia Gardens -- he was in a difficult position when we were negotiating potential annexation and it was probably, in part, our inability to agree with VG that delayed the process to the point that it was not feasible at the County level. Nevertheless, I like him and think he is good for our relationship with the County.
That being said, Fla. Stat. 112.3143 mandates what constitutes a conflict of interest for a public official. I think the statute is too narrow. It only allows a public offical to recuse themselves from a vote when the item will "inure to his or her special private gain or loss," in English that is when the public offical will have a financial gain. There are lots of times that a public official should probably recuse himself or herself even when there is not financial gain. However, in this case, there was a recusal.
Councilman Espino works at Fuentes Group. He is the General Counsel. He provided a letter on August 15, 2011 to the Mayor and Council explaning that Fuentes Group is a "client" of his "law firm." (As a lawyer, I find that kind of funny; it is not that different as me saying Jennifer Ator, PA is a "client" of Hankins & Ator, PL.) He is required to file Form 8B, which I have not seen but I assume he has done. The contract was the last item on the agenda and Councilman Espino left the room just prior to the discussion. The City Attorney announced that he had a conflict. The item was uneventful. Very little was said. The Mayor waxed poetic on the Fuentes Group, but he also received at least $1500.00 from Mr. Fuentes and his associates in campaign contributions.
Full disclosure: I also received a campaign contribution from Mr. Fuentes, and so did Councilman Lob and Councilman Espino (although I am not sure how much anyone else received and have not reviewed the reports in detail). For me, getting a campaign contribution does not mean I am going to vote how you want me to vote. Although, generally speaking, campaign contributions buy access and sometimes that is enough.
In this case, it was wrong to waive competitive bidding; it was wrong that Mr. Fuentes did not appear to provide a report and give us a list of things that he is looking to do for us this year; and it was wrong that I did not raise the issues at the Council meeting.
I regret not raising the issue. I thought that recusal from the vote spoke for itself. In hindsight, it is clear that citizens do not understand when and why a Councilmember would recuse themselves. I voted no because it does not pass the smell test. But I should have raised a big stink about it and I am ashamed of myself for not doing so.
I also have recused myself from a vote. In April, Council voted to change the code to allow a residential property with a property line substantially joined to a commercial property to be used as a business (in limited ways). I admit the ordinance change was, in large part, a result of my desire to use 36 Palmetto Drive as my law firm. When I purchased the house on Palmetto, I planned to seek rezoning. On three sides it is commercial or mixed use. Upon additional investigation into what that would mean for my neighbors, I wanted to limit the uses and prohibit the domino effect of changing the property to commercial. After discussions with the City Attorney (who always told me a code change was more appropriate than re-zoning for this particular property), I suggested a code change that provided very limited use of the property. The code change was not just good for me, but it was good for Miami Springs. While the property is residential, it is not homesteaded and it can be treated like commercial property by the property appraiser. There are other properties throughout the City that also can take advantage of this code change. Thirty-six Palmetto was worth more to me because of its location and accessibility to the commercial district, the same could be true for other properties on the edges of the commerical districts.
There is a bit of form over substance with regard to this issue. I am bothered by how it was handled. The matter was not clear to our residents. We did not seek competitive bids (although I am not sure we could have done better -- there are better lobbyists, but probably not for what we want to pay). And finally, we were not provided any feedback from the past or plans for the future from Mr. Fuentes before making our decision.
Moreover, while it should not be this way, the reality is when you are elected to Council you bring your gifts (and your baggage) with you and you use those for the benefit of the City. I have provided plenty of legal opinions to Council and the City. Even if it is not in an official capacity, it is certainly legal advice. The Mayor uses his skills and contacts to do things for the City as well, including gratis printing on occasion. Councilman Lob worked on the website development with our staff and consultant, as his expertise is IT. When the residents elect someone for this "part-time" job, they get some of the skills from the "full-time" world. I would never dream of asking the City to retain my firm. I can't imagine Councilman Lob submitting a bill for his work on the IT matters. Should the City be paying Councilman Espino's employer to lobby for the City when his job as a pubic official is to lobby for the City? Maybe, or maybe not. But we did not even discuss it. Shameful.
The item was poorly handled: by Councilman Espino, by Mayor Garcia, by myself, and by the rest of the Council.