When is a developer not a developer?
When language manipulation changes the question presented on behalf of the Mayor to the Palm Beach County Ethics Commission (COE) for an advisory opinion on a Conflict of Interest matter concerning the Mayor first revealed in 2013.
When the final question submitted to the COE is a result of a negotiation between the City Attorney and the COE’s staff specifically designed to influence a favorable ruling by the reviewing body.
This language manipulation is first revealed in documents received by BocaWatch through its public records requests from the City and the COE. Found are 63 pages revealing the efforts by the City Attorney and 66 pages of materials from the COE establishing their participation in crafting a question designed to obtain a favorable result.
Presented below are relevant excerpts in chronological date order reflecting discussions between the City and the COE staffs. Uncovered is that top management in the City and at the Commission were informed and are involved.
The City Manager, Deputy City Manager and City Attorney(s) were copied and were aware of the language negotiation. At the COE, the executive director and staff attorneys were included in the information flow for the negotiated language change.
BocaWatch presents these excerpts for you, the discerning public, to formulate opinion on the original question asked; to wit: Is there an inherent conflict of interest for the private business interests of the elected official to do business with the largest commercial land owner/developer in the city of Boca Raton; a relationship that began in 2007 and not inquired into until 2013?
Records establish that beginning in April, 2013 and continuing through August 2013 communications exist between the City Attorney and the COE staff on this very fact pattern.
April 10, 2013…in an email from Diana Frieser, City Attorney, copying City Manager Lief Ahnel, Deputy City Manager George Brown and two assistant city attorneys, to the COE requesting an advisory opinion regarding an undisclosed business relationship between an unnamed “elected official” and an unnamed “developer” in the city of Boca Raton. The letter does not identify by name the “elected official” or the “developer”; nor does it fully identify the breath of the relationship or the extensive real estate holdings of the “developer” involved.
August 24, 2013…. Freiser receives a response email from the COE staff including a copy of the proposed opinion for the COE panel at its May 2013 meeting, where, if approved by the panel, said opinion would become official. Presented is the relevant quote from the letter:
“While the relationship may not constitute a prohibited conflict under the Code of Ethics, it does create a strong appearance of impropriety. This is especially true if the official acts are of a discretionary nature. Here, there is nexus between the Developer and the elected official’s outside business based on the percentage of the property owned by Developer and his various business entities. Because Developer maintains a controlling interest on the COA’s board of directors, (developer) could elect to terminate or renew the COA’s contract with the (elected) official’s outside business, and because there is no question that a vote on the Boca project will result in a special financial benefit or loss to Developer, the commission recommends (emphasis added) that the official abstain and not participate in this matter.”
MORE TO COME….
On or around April, 2013 thru May, 2013, there are a communications between the city attorney’s office and the staff at the COE where an assistant City Attorney argues to the COE’s staff that the “appearance of a conflict” is not the same as an actual conflict. In an email dated April 24, the COE attorney copying Executive Director Cullen, states the following:
“The agenda will go out on Friday. As you can tell from the opinion, we struggled with making this one work. I agree with your initial submission under the language of the code. It is the association rather than the developer that is your official’s customer or client. That being said, the significant ownership interest coupled with the special benefit to the developer based on the Boca vote brought us to the draft RQO. If you see another way around this please let me know – my real concern is not whether the developer currently exercises control over the Association but whether he could – that’s the question I see the COE asking.”
Assistant City Attorney Koehler response:
“Thank you for sending us the draft RQO 13-006. When is the agenda for 5/2 published? We are going to submit additional comments (and factual clarifications) so that they may be incorporated into the draft RQO 13-0066.”
In another draft correspondence dated June 6, 2013 to City Attorney Frieser, the COE’s staff states:
“You asked whether an official who owns a property management company that provides services to a condominium association (COA) is prohibited from participating or voting on a matter that may financially benefit a developer whose business entities own over eighty percent of the property within the COA.”
The COE staff concludes for the second time, that:
“….Based on the facts presented, there is an issue of an appearance of impropriety where there is nexus between developer whose various business entities own over eighty percent of the property within the COA that is a customer or client of elected official’s outside business and an issue coming before the City Council. For this reason, the Official must (emphasis added) abstain from voting and not participate in this matter.” The use of the term “must” is even stronger language in this second opinion than in the April correspondence which used the term “recommend.”
In or around July, 2013, after the City Attorney changed the facts contained in the advisory opinion question asked of the COE. The pertinent change is captured in the following excerpts.
For comparison purposes the first excerpt contains the original language submitted resulting in the two negative COE conclusions and the second reflects the City Attorney’s changed factual language.
The first excerpt: “…In addition to the Property, the Developer has extensive real property holdings throughout the City of Boca Raton (“City”). The Developer has an anticipated redevelopment project located in the City (“Project”). In order to proceed with the Project, the Developer will require the approval of the City Council. The approval (or denial) of the Project will result in a special financial benefit (or loss) to the Developer….”
The second excerpt: “…The investor is neither the applicant nor the developer of the Project. However, the Investor has an interest in the underlying property for this proposed Project as an owner or investor…”
This glaring change of status from “developer” to passive “investor” misleads the panel about the true factual situation of the “developer” in the city of Boca Raton…
Almost immediately after the language change was submitted, the COE apparently reviewed the changed language and based upon this language with its misleading factual capture opines the favorable August 2013 opinion presented in its entirety below.
With all new members now on the City Council since 2013, the council consists of members who were not elected at the time and considering there is no indication in the public record of their knowledge or involvement, the benefit of the doubt must be given to these council members for not having implied or actual knowledge of the uncovered breach of public trust. The previously undisclosed relationship along with the questionable representation by the City Attorney of the Mayor’s private interests with her private business dealings with the Developer seems an unavoidable conflict. The inquiry about these business dealings dating back to 2007 are not at all timely and seem to raise serious conflict for the Mayor with her public trust duties as both a City Council member and now as the Mayor of Boca Raton.
BocaWatch believes this circumstance to be one of great public import requiring an independent inquiry to determine the Mayor’s fitness to remain in office or, at a very minimum, the Mayor’s ability to participate in any discussions and votes that would have a direct or indirect impact on the Boca Raton real property owned or under the control of the as yet undisclosed developer interest.
Based upon these revelations, BocaWatch requests the following questions be answered regarding the request to the COE for the advisory opinion:
- What authorization was granted to the City Attorney to pursue these opinions on behalf of an ‘unnamed’ elected official? And By whom?
- What communications exists between the ‘unnamed’ elected official and the City Attorney, the Assistant City Attorney and the City Manager and/or Deputy City Manager?
- What knowledge did the other members of the city council at the time have regarding these extensive efforts to receive a favorable opinion from the Ethics commission?
Fast forward to today….the current members of the City Council (Robert Weinroth, Scott Singer and Jeremy Rodgers) must be given the benefit of the doubt.
Councilman Mullaugh, however, was on the Council at the time and inquiry of his knowledge would be a prudent fact finding effort. Of course, newly elected Councilwoman O’Rourke is not a part of this matter but will be a major participant in the Council’s legislative solution and corrective action.
BocaWatch reinstates its demand that
- The City Council invite the State Attorney to do an independent investigation of these uncovered alleged conflict activities and it’s mostly undisclosed nature by the Mayor over the last decade;
- The City Council must authorize the expenditure for legal counsel to protect Mayor Haynie’s rights in the legal process, politically, civilly and potentially beyond.
BocaWatch is calling upon Councilmember Weinroth, the senior member of the newly organized board to raise these issues at the next City Council meeting for discussion.
No internal investigative option exists as both the City Attorney and the City Administration have relevant involvement and information in these uncovered facts with no in-place mechanism for such an independent review of the circumstances.
Unless and until there is an independent finding as to the Mayor’s past and present ability to govern considering this now disclosed conflict, the residents will continue to see her actions as a ‘Breach of the Public Trust’, a situation that is wholly unacceptable.