Secrets and Sunshine
More than four months have passed since the Dade State Attorney's Office began an investigation to determine whether certain county commissioners violated Florida's Sunshine Law by meeting secretly to discuss -- and presumably to influence -- the selection of a new county manager last December. Violation of the law, one of the strongest in the nation, can result in criminal charges and penalties that include jail time.
The conduct of several commissioners has come under scrutiny, but the investigation has centered principally on Chairman Art Teele and Commissioner Bruce Kaplan. New Times has contacted many of the more than two dozen people who have been questioned under oath by prosecutors. The picture that emerges from these interviews is an investigation with too many suspects and not enough witnesses, a probe struggling to find focus and beset by indecision. The likelihood of any charges being filed against anyone remains very much in doubt.
As 1994 drew to a close, several county commissioners and others close to the selection process candidly admitted in media reports that an unprecedented level of backroom dealing took place prior to Armando Vidal's appointment as county manager. In the weeks that followed, many people assumed that the State Attorney's decision to bring charges against some elected officials was a foregone conclusion. Only the timing and the details remained to be resolved.
Instead prosecutors have found themselves outsmarted by some commissioners and stymied by others. As a result, the options for filing charges have been significantly reduced, if not altogether compromised. For example, New Times has learned that the State Attorney's Office granted Commissioner Maurice Ferre immunity from prosecution for his testimony without realizing that he, too, may have violated the Sunshine Law by meeting secretly with Kaplan. Prosecutors believed Ferre could offer information about a meeting between Teele and Kaplan, but once protected by immunity, Ferre readily admitted to his own participation in a private meeting with Kaplan regarding the commission's upcoming vote for a new manager. Although prosecutors are now powerless to make a case against Ferre, the commissioner's testimony would likely be crucial in proving a charge against Kaplan. But that consideration becomes relevant only if Dade State Attorney Katherine Fernandez Rundle decides that charges are warranted.
"The Sunshine Law has never been taken seriously by the State Attorney's Office," says veteran political consultant Phil Hamersmith, a long-time advisor to Teele and one of the few knowledgeable sources willing to comment about the investigation on the record. "They don't take it seriously because they don't see the moral outrage by the public over violations of the Sunshine Law. The only people who take this law seriously are the media, because they have a vested interest in having politicians discuss issues in public forums. Nevertheless it is the law. If you wanted someone to believe this was a serious investigation, you wouldn't use your part-time help."
Hamersmith's pointed reference to part-time help is aimed at the lead prosecutor handling the investigation, Assistant State Attorney Joe Centorino. Under a highly unusual employment arrangement, Centorino divides his time between a private law practice in Broward and his prosecutorial duties in Dade. He is the State Attorney's resident expert on the Sunshine Law, and he enjoys an unimpeachable record for honesty and hard work. But as far as Hamersmith is concerned, the issue is not professional ability, it is public perception.
Despite that assessment, the politicians involved apparently are taking Centorino's investigation quite seriously, as indicated by the attorneys they've hired to represent them. Teele has retained famed criminal defense attorney Roy Black, who most recently beat the State Attorney's Office in the retrial of Miami police officer William Lozano. Ferre's immunity agreement was negotiated by George Yoss, a former chief deputy assistant state attorney who also represented former commissioner Larry Hawkins while he was under investigation for alleged ethics violations. Kaplan has hired Steve Chaykin, who formerly headed the public-corruption unit at the U.S. Attorney's Office.
State Attorney Rundle will not comment on the specifics of the investigation, though she stresses that her office is diligent in pursuing Sunshine Law cases. "We consider them serious and we do fully investigate them," she says, adding that she has "the utmost confidence in Joe Centorino. He knows these laws inside and out."
The State Attorney's Office has long been criticized for its lack of aggressiveness in prosecuting political figures, even when confronted with solid evidence of wrongdoing. In 1988 former county commissioner Barry Schreiber lied on his financial disclosure forms and used taxpayer money to finance a trip to New York to visit his girlfriend when he was supposed to be at a conference in Washington, D.C. In 1990 former county commissioner Sherman Winn was twice investigated for allegedly pressuring county officials to hire his relatives, a charge substantiated by the people who did the hiring. In both cases, the State Attorney's Office, under the direction of Janet Reno, chose not to press charges. Miami city commissioners Miriam Alonso and Miller Dawkins, as well as former city manager Howard Gary, were also investigated for alleged misconduct but never charged.
Some observers who have followed the State Attorney's public-corruption cases over the years say the threshold for prosecution is simply too high, that unless a conviction is virtually guaranteed, charges will not be brought. (Being elected officials themselves, state attorneys have a unique understanding of the career damage that can be caused by the mere filing of charges against a politician.) But that attitude, these observers say, fosters an even more dangerously permissive environment in which corrupt politicians are emboldened by endless investigations that never seem to result in actual prosecution.
Former county commissioner Joe Gersten supposedly is still under investigation for an incident that took place three years ago. (Gersten reported his car stolen after allegedly smoking crack with a Biscayne Boulevard prostitute.) The State Attorney's Office spent nearly a year looking into allegations against Larry Hawkins before finally passing the information to the state commission on ethics, which then launched its own investigation. And it took two years for the Lee County State Attorney's Office (assigned the case because of a conflict in the Dade State Attorney's Office) to decide there was insufficient evidence to prove that Bruce Kaplan orchestrated the firing of his former rival, Conchy Bretos.
"These decisions are not based on politics at all," argues Rundle, who says the media ignore many of the cases her office does bring against public officials. "They are based on the evidence, the facts, and the law. We have to have a reasonable expectation of a conviction before we can proceed. It is the same in every case. That's our code of ethics. We simply apply that standard."
The Sunshine Law provides Rundle with two options: She can charge offenders criminally with a second-degree misdemeanor, which carries a maximum penalty of 60 days in jail and a $500 fine; or if the infraction is determined to be inadvertent, she can bring civil charges that carry a fine of up to $500. (Recently such a civil case was brought against El Portal Mayor George Eckert for holding budget workshops behind closed doors.)
If prosecutors are able to win a conviction for a criminal violation, Gov. Lawton Chiles has the power to remove the politician from office. (The governor can also suspend an official while charges are pending.)
Following a criminal conviction in this case, Rundle would have one more option to consider: She could ask a judge to overturn the commission's appointment of Armando Vidal as county manager, and force a new vote. One private attorney involved in the case asserts that such a move would send the strongest possible message to Dade's elected officials that the State Attorney's Office will not tolerate violations of the Sunshine Law. But doing so could severely disrupt county governmental operations, and in light of the powerful interests that backed Vidal, it could also prove to be an act of political suicide for Rundle.
Some people close to the case believe that Rundle must take some definitive action regardless of the political risks. Given the brazen nature of the apparent violations, her very credibility could be at stake. Says one local attorney: "It's the arrogance [of the commissioners] that gets me." Adds political consultant Hamersmith: "It would seem that if there was ever going to be a case brought for violating the Sunshine Law, this should be it."
When county commissioners met this past December 15 to select a new county manager, they had nine finalists from which to choose. In truth, however, only two candidates had emerged as serious contenders: Vidal, the county's public works director; and Cynthia Curry, an assistant county manager. Vidal is a Cuban American; Curry is an American black. The political struggle preceding the final vote had taken on an ugly, racially charged tone. It also had become a personal battle that pitted two powerful commissioners against each other. Chairman Art Teele, who is black, wanted Curry. Commissioner Alex Penelas, the board's Hispanic vice chairman, backed Vidal. Several commissioners appeared to be potential swing votes: Bruce Kaplan, Maurice Ferre, Gwen Margolis, and Natacha Millan. When the final vote was taken, Vidal won, but just barely.
Teele, who rarely loses a political battle, was enraged. Minutes prior to the vote, knowing his candidate was about to be defeated, he called Rick Sisser into his office and proceeded to bloody the cigar-chomping lobbyist by punching him in the face. The commission chairman later claimed that Sisser, in an attempt to discredit him in the black community, had spread rumors that Teele wasn't truly supporting Curry.
Following the vote, Teele's anger continued to fester. He complained that some commissioners were plotting to remove him as chairman, and he told reporters that the day before the vote he had met privately with Bruce Kaplan, who, he claimed, had sought him out to discuss the manager-selection process, a clear violation of the Sunshine Law. In a private meeting at Mike's Pub, a bar in the downtown condominium building where Teele lives, Kaplan reportedly confided that he wanted to vote for Curry but feared the political consequences, given that a large portion of his district is Hispanic. Teele later told the Miami Herald that he believed Kaplan's true intention was to gain information about the level of commission support for Curry. (Kaplan ended up voting for Vidal.)
But in his haste to cast aspersions on Kaplan, Teele implicated himself in a possible violation of the Sunshine Law, and his candor quickly prompted the State Attorney's Office to announce the opening of an investigation into the incident.
Both Teele and Kaplan promised to cooperate fully. Neither has.
In January New Times reported that Commissioner Gwen Margolis was also being investigated for her role in an alleged attempt to cut her own deal in the manager's vote. Margolis reputedly asked Curry to pass a message to Teele: If he agreed to support her interest in a certain change to the county charter, she would agree to vote for Curry. (The Sunshine Law prohibits commissioners from using intermediaries to circumvent its open-meeting requirements.) Teele told the Herald he used another messenger to inform Margolis that he accepted her terms. At the last minute, though, the deal fell apart after Alex Penelas offered more enthusiastic support for the charter change. She threw her support to Vidal. "I brokered my vote for the people," Margolis boasted unabashedly.
Prosecutors also investigated the circumstances surrounding a cocktail party held just days before the manager's vote. New Times reported that Natacha Millan had been invited to a reception at the home of Hialeah City Councilman Herman Echevarria to celebrate the recent election of Raul Martinez as mayor. Alex Penelas also attended. Following that gathering several county commissioners opposed to Armando Vidal privately complained that Penelas used the event to pressure Millan into supporting Vidal. Although Millan did eventually vote for Vidal, she denied that anyone at the reception talked to her about her intentions.
The Margolis investigation appears to have stalled when the sworn statements of Margolis and Curry failed to confirm the existence of an explicit deal between Teele and Margolis. (Both women spoke to prosecutors voluntarily.) Likewise, nearly everyone who attended the Hialeah cocktail party was questioned by prosecutors, and apparently no wrongdoing was discovered. But the meeting between Teele and Kaplan was a different matter.
Soon after opening his investigation, Assistant State Attorney Centorino asked Maurice Ferre to submit to questioning in the belief that the commissioner may have had information about both the Teele-Kaplan meeting and the Hialeah reception, to which he reportedly had been invited but declined to attend.
When contacted by Centorino, however, Ferre refused to meet voluntarily; he wanted immunity from prosecution. Centorino granted the request after some haggling with Ferre's attorney, George Yoss. It quickly became clear why Ferre needed protection.
According to several sources, Ferre told Centorino he had met secretly with Kaplan before the manager's selection. Accompanied by lobbyist Henry "Kiki" Berger, Kaplan reportedly visited a private office maintained by Ferre and engaged in a discussion about the upcoming vote. Ferre also informed Centorino of a telephone conversation he'd had with Teele the morning of the vote. The subject of that conversation, however, has not been revealed.
Both admissions by Ferre caught prosecutors by surprise, and the immunity agreement prevented them from widening their probe to include him. Ferre refuses to comment, noting that the terms of his deal with prosecutors prevent him from discussing the subject. Attorney Yoss also declines to discuss the case aside from expressing satisfaction with having secured Ferre's immunity.
While Ferre may have cleverly insulated himself from possible criminal charges, his testimony still could prove very useful. Prosecutors, for example, could decide to take action against Kaplan based solely on his meeting with Ferre. (Kaplan and his attorney, Steve Chaykin, declined to comment for this article.)
The State Attorney's Office, however, faces a potential problem in Kiki Berger. Long an ally of Kaplan, as well as state Sen. Al Gutman, Berger has been associated with some of the most divisive and controversial political campaigns in Dade County. Sources say he's been questioned by Centorino more than once, and that he did his best to contradict Ferre and to exonerate Kaplan. (Berger was unavailable for comment last week.) Bringing charges against Kaplan for meeting with Ferre thus could end up being a test of Berger's word against Ferre's, and that, according to several attorneys, hardly provides prosecutors with a "reasonable expectation" of conviction.
That potential scenario reportedly has led to considerable debate within the State Attorney's Office regarding Teele. Any case against Kaplan would be immeasurably strengthened if Teele were to testify about his own meeting with Kaplan. Two alleged Sunshine violations, in close proximity and pertaining to the same subject, would indicate a pattern. Furthermore, prosecutors could argue that Kaplan initiated the meeting with Teele, if not Ferre; phone records show he called the commission chairman several times before they met. (In his only public comment about the meeting at Mike's Pub, Kaplan said the encounter was a sheer coincidence.) Additionally, Ferre and Teele would be expected to perform excellently as witnesses whose combined testimony could overshadow a possible challenge from Kiki Berger, who also attended the Teele-Kaplan meeting.
Yet Teele, despite his earlier promises to cooperate, has refused to testify without first being granted immunity. "I've retained counsel and I have to follow counsel's advice," he says. "But I categorically deny that I had a meeting with Kaplan that violated the Sunshine Law. I did not violate the Sunshine Law." (Teele's defense is now reportedly based on the assertion that he merely listened to Kaplan and did not participate in any conversation about the manager's vote.)
So why not simply grant immunity to Teele and present a strong case against Kaplan? Neither Centorino nor Rundle will address that question, but a number of observers say the dangers of public misperception make such a tactic problematic. If Rundle were to pursue Kaplan by approving immunity for two commissioners already implicated in Sunshine violations, she could leave herself open to charges of bias. For one thing, Rundle is a Democrat; Kaplan is a Republican. For another, Rundle actively supported the candidacy of Conchy Bretos in her unsuccessful campaign for county commissioner, a campaign she lost to Kaplan.
Instead of granting Teele immunity, however, prosecutors could still decide to bring charges against him. After all, he admitted publicly that he met with Kaplan regarding the manager's vote. Witnesses for the prosecution could be Kaplan and Berger, most likely subsequent to a Kaplan conviction for meeting with Ferre. That approach, though, also comes with liabilities. If Kaplan is convicted, both he and Berger would later face credibility problems on the witness stand, increasing the risk of a failed prosecution. That risk alone, says political consultant Hamersmith, could be enough to dissuade prosecutors from charging Teele. "You cannot do anything in this politically correct town of ours without thinking of the ethnic and racial implications of all of this," Hamersmith contends. "Art Teele is the most powerful black politician in Florida, and if you indict him, you'd better damn well have a case you can win."
The State Attorney's Office could, of course, decide not to charge anyone. Critics would howl and politicians would celebrate. But Rundle would then be free to subpoena all suspected lawbreakers, grant them immunity, and force them under threat of perjury to tell the truth in all its sordid detail. Transcripts of their testimony would then become public record, and finally the sun would shine. A little late, perhaps, but with blazing intensity.
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