sarnoff c11-33 final version pc memo

8/3/2019 Sarnoff C11-33 Final Version PC Memo

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PROBABLE CAUSE MEMORANDUM

To: Miami-Dade County Commission on Ethics

and Public Trust

From: Michael P. Murawski

Advocate

Re: C11-33 (Niemeyer v. Sarnoff)

Date: December 14, 2011

....................................................................................................................................

Recommendation:

A finding ofNo Probable Cause should be entered in this case.

Background and Investigation:

This ethics complaint was filed against, City of Miami Commissioner Marc

Sarnoff by Michelle Niemeyer (Niemeyer), one of his opponents in the recent

election for the commission seat in Miami, District 2.

Niemeyer alleges, among other things, that Respondent exploited his official

position as Chairman of the City of Miami Downtown Development Authority

(DDA) because the DDA expended public money to fund a Downtown Votes,

voter registration/absentee ballot request campaign ostensibly to increase voter

participation in the DDA area. Principally, complainant complains that the DDA

should not be engaged in political activity. Specifically, complainant points to

Florida statute 106.15 (3). That statute states, in pertinent part, that A candidate

may not, in furtherance of his or her candidacy or election to public office in any

election, use the services of any state, county, municipal or district officer or

employee during working hours.


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Complainant also cites section 36 (j) of the City of Miami Civil Service

rules, which prohibit a person holding a position in the classified service [from]

taking part in political managementor in political campaigns during city working

hours or with personal property belonging to the city.

The mission of the DDA, according to its website, is to grow, strengthen and

promote the economic health and vitality of Downtown Miami. The Miami DDA

advocates, facilitates plans and executes business development, planning and

capital improvements, and marketing and communication strategies.

At its Board meeting on July 11, 2011, the Executive Director of the DDA,

Alyce Robertson, (Robertson) reported, among other things, that the Get Out-

The-Vote campaign was being kicked off. Robertson made this announcement as

part of her Executive Director report. Complainant notes in her complaint that

Respondent did not object to Robertsons announcement.

The mailer/cards sent out by the DDA ask if the voter wants an absentee

ballot or wants to record an address change; the cards also request e-mail

addresses. The cards were stamped with a DDA postal permit to allow the postage

for the returned card to be prepaid. The cards were to be returned to a post office

box rented by the DDA. Niemeyer alleged that the information collected by the

DDA could be accessed by Sarnoff, and could, conceivably, be useful in his re-

election efforts.

Alyce Robertson:

Robertson is the Executive Director of the DDA; she was interviewed by a

COE investigator. Robertson acknowledged that the DDA distributed the cards as

part of a voter outreach project to encourage residents to register for the upcoming

November 1, 2011election. According to Robertson the cards were first used in

June 2011, for the Countys Mayoral election.


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Robertson explained that the DDA district is located within Miamis District 2

election area. She explained that the DDA district contributes significantly to

Miamis tax base but does not receive the appropriate return in services. The

purpose of the Get-Out-The-Vote project is to insure that City residents living

within the DDA have a say in how their tax dollars are spent. According to

Robertson, Sarnoff, other than sitting as the Chair of the DDA, had no input into

the decision of whether or not to proceed with the project. Sarnoff, along with the

other members of the board, did receive a briefing as to the progress of the project

at monthly board meetings. Sarnoff, according to Robertson, has never asked for

or received any information obtained through the project.

COE investigators also interviewed the DDA Deputy Director, Javier A.

Betancourt:(Betancourt) and Nicholas Martinez, the DDA Research Coordinator

(Martinez). Both Betancourt and Martinez advised that the DDA coordinated with

Miami-Dade Elections to ensure that the materials distributed were compliant with

state law and Miami-Dade Ordinances. Both Betancourt and Martinez advised that

they had not been contacted by Sarnoff concerning the project, nor had anyone

from the Sarnoff campaign ever contacted them to request any voter information

obtained through the project. However, since the DDA is a public entity, the

absentee ballot requests, excluding certain non-public information, are a matter of

public record.

Investigation determined that the DDA sponsored a similar Get-Out-The-

Vote campaign during the mayoral election as well. Moreover, the absentee

ballot request mail outs merely encourage voters to request a ballot so that they can

vote and have their voice heard. The mailer, (attached as Exhibit A), is neutral in

content. It makes no mention of the Sarnoff campaign and in fact does not

reference any particular candidate.


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Secondarily, Complainant alleges that Sarnoff would have exclusive

availability to the information contained in the absentee ballot requests.

Specifically, complaint theorizes that, if the DDA staff held on to the AB request

forms they were sent until the last day to turn them into the Election Department

then Sarnoff could possibly benefit from this because he would have the contact

information from the AB request forms prior to any other candidate having that

information (which they receive from the Elections Department).

Our investigation showed that:

#1. There is no evidence to show that DDA staff retained AB ballot requests until

the last day before they could be turned in. On the contrary, the AB ballot request

forms were turned over to Elections on a continuing basis.

#2. There is no evidence that Sarnoff, or anyone on his behalf, requested or

received the AB ballot request form information prior to the request forms being

delivered to Elections.

#3. The AB ballot request form information in possession of the DDA is a public

record that was available to anyone who requested it; it was not proprietary to Mr.

Sarnoff.

#4 Even if Sarnoff had access to the AB ballot request form information prior to

the other candidates all that would mean is that he had knowledge of people who

requested AB ballots. It is purely speculative to believe that having that knowledge

would in any way translate into more votes for Mr. Sarnoff as opposed to any other

candidate.


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Relevant ordinance:

Section 2-11.1 (g) of the Countys Conflict of Interest and Code of Ethics

ordinance, (the County Code) is entitled Exploitation of official position

prohibited. It states, in pertinent part, that No person included in the terms

defined in Subsections (b) (1) through (6) shall use or attempt to use his

official position to secure special privileges or exemptions for himself or

others (emphasis added)

Analysis and Conclusion:

There is no indication that Respondent Sarnoff violated section 2-11(g) of

the County code. Respondent took no affirmative action toward initiating the Get-

Out-The-Vote campaign. The Get-Out-The-Vote campaign is, arguably,

consistent with the mission of the DDA. Moreover, the DDA has previously

engaged in a Get-Out-The-Vote campaign in campaigns that Respondent had no

involvement in. The Executive Director of the DDA briefed the DDA Board on the

Get-Out-The Vote campaign not only in this election but also in the previous

County Mayoral election. Not one Board member raised any objections to the idea

of the Get-Out-The-Vote campaign. Moreover, although the COE has no

jurisdiction to enforce the Florida Statutes or the Citys Civil service code, these

laws prohibit candidates from using government resources in furtherance of their

candidacies.

The DDA Executive Director engaged her agency to conduct a candidate

neutral, civic minded, Get-Out-The Vote campaign which ostensibly benefits

the DDA and its mission as well as all the candidates not just Mr. Sarnoff.

Finally, it appears that the absentee ballot request forms are neutral and

objective in content. They do not promote any one particular candidate and there is

no evidence to suggest that Respondent would be exclusively available to any

special information by the DDA receiving ballot requests.


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Accordingly there is no evidence to support the allegations made against Sarnoff

by the complainant. I recommend this Commission find No Probable Cause to

support this complaint and that it be dismissed.

sarnoff c11-33 final version pc memo

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