Legislative Matter

Miami-Dade Legislative Item
File Number: 121472

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Clerk's Official Copy

File Number: 121472

File Type: Resolution

Status: Adopted

Version: 0

Reference: R-658-12

Control: Board of County Commissioners

File Name: MAYOR NOT TO PARTICIPATE IN PROCUREMENT WHEN MAYOR/CONFLICT

Introduced: 7/13/2012

Requester: NONE

Cost:

Final Action: 8/23/2012

Agenda Date: 8/23/2012

Agenda Item Number: 10A15ALTERNATE

Notes:

CHARTER AMENDMENT

Title:

RESOLUTION CALLING A COUNTYWIDE SPECIAL ELECTION IN MIAMI-DADE COUNTY, FLORIDA, TO BE HELD IN CONJUNCTION WITH A GENERAL ELECTION ON TUESDAY, NOVEMBER 6, 2012, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORS OF MIAMI-DADE COUNTY THE QUESTION OF WHETHER TO PROVIDE THAT THE MAYOR NOT PARTICIPATE IN COUNTY PROCUREMENTS WHEN THE MAYOR HAS A CONFLICT OF INTEREST (SEE ORIGINAL ITEM UNDER FILE NO. 121398)

Indexes:

CHARTER AMENDMENT

Sponsors:

Sally A. Heyman, Prime Sponsor

Sunset Provision: No

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History
Acting Body	Date	Agenda Item	Action	Sent To	Due Date	Returned	Pass/Fail

Board of County Commissioners	8/23/2012	10A15 ALTERNATE	Adopted				P
REPORT:	Commissioner Heyman noted this item replaced the Clerk of the Courts with the BCC Chair or Vice Chair, at the request of the Clerk. Mayor Gimenez noted he supported this item. He said the right thing to do if he had a conflict of interest was to recuse himself; however, presently, if he recused himself, he would have to give the procurement authority to one of his subordinates, which was not proper. It was moved by Commissioner Heyman that Agenda Item 10A15 Alternate be adopted, as presented. This item was seconded by Commissioner Sosa, followed by discussion. Chairman Martinez pointed out that what the item was proposing was not proper either, noting if the Mayor recused himself because of a conflict regarding a procurement item, and the BCC Chair filled in for the Mayor, the Chair could place the item on the agenda, and vote on it. Mayor Gimenez said he was in favor of the Clerk of the Courts filling in for him in case of a conflict of interest regarding a procurement item. Commissioner Diaz suggested that if the Mayor recused himself because of a conflict of interest, and the BCC Chair was chosen to fill in for him, the BCC Chair should not vote on that particular item. Assistant County Attorney Rosenthal clarified that this item did not provide that the Chair or the Clerk would have veto authority over the procurement matter; he would only have the authority to make a recommendation with regard to a bid waiver. Chairman Martinez pointed out that whether the Mayor retained the authority over the procurement matter or was replaced by the BCC Chair, a potential conflict of interest was involved. Commissioner Barreiro said that the Clerk of the Courts as a State constitutional officer had procurement powers as a State official. Commissioner Suarez suggested that Agenda Item 10A15 Alternate provide that for this type of procurement matter there would be no veto power, and the bid waiver would be handled by the BCC Chair. Chairman Martinez pointed out that the BCC Chair would still place the item on the agenda, assign it to a Committee, and vote on it. He stressed that if the Commission members included this in the Charter, and it was not satisfactory, the Commission would be unable to remove it for quite some time. Commissioner Suarez said that in this unusual circumstance, the Commission members should let the legislature do what is typically done by the executive branch. He asked whether the sponsor would accept a friendly amendment specifying that for this type of procurement matter there would be no veto power. Assistant County Attorney Rosenthal stated that as currently drafted, the Mayor had the power to veto the procurement item. Chairman Martinez inquired whether this issue was so important that it had to be included in the Charter now. Mayor Gimenez said he believed this item was extremely important, because whenever he was faced with this type of procurement, he was unsure how to handle it. He noted his son worked for a construction company and whenever that company put in a bid with the County he had to recuse himself and assign it to a deputy. He said that he did not want any appearance of impropriety. He stressed that having the Clerk of the Courts fill in for him was the cleanest method, because he is a countywide elected official, has administrative duties, and does not vote on procurement matters. He noted he believed this issue should be included in the Charter. Commissioner Sosa noted the Assistant County Attorney had informed her that delegated authority could be transferred by ordinance in the case of the conflict itself; however, it would not be possible to transfer the Charter powers. Assistant County Attorney Rosenthal advised that everything could be done by ordinance with the exception of bid waivers, and this was what was being discussed right now. Commissioner Heyman pointed out that the Clerk of the Courts is responsible for the Commission, handles bid protests, selects the hearing officer, and does not want anybody in his office to recommend awards when the Mayor has a conflict, because this would jeopardize the neutrality of his office. She said that this circumstance was very rare, noting in ten years there had only been three vetoes. However, it was important to have a contingency plan in place, because if no one was identified to fill the mayoral vacancy when the Mayor had a conflict, it could be extremely costly for the County. Agenda Item 10A15 Alternate passed by a vote of 9-1; (Chairman Martinez voted “No”; Commissioners Edmonson, Moss, and Souto were absent).

Board of County Commissioners	7/17/2012	10A15 ALTERNATE	Deferred		8/23/2012		P

Office of the Chairperson	7/16/2012		Additions

County Attorney	7/13/2012		Assigned	Oren Rosenthal

Legislative Text

TITLE
RESOLUTION CALLING A COUNTYWIDE SPECIAL ELECTION IN MIAMI-DADE COUNTY, FLORIDA, TO BE HELD IN CONJUNCTION WITH A GENERAL ELECTION ON TUESDAY, NOVEMBER 6, 2012, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORS OF MIAMIDADE COUNTY THE QUESTION OF WHETHER TO PROVIDE THAT THE MAYOR NOT PARTICIPATE IN COUNTY PROCUREMENTS WHEN THE MAYOR HAS A CONFLICT OF INTEREST

BODY
WHEREAS, The Board of County Commissioners pursuant to Section 9.07 of the Miami-Dade County Home Rule Charter desires to place the attached Charter amendment before the electors of Miami-Dade County on the November 6, 2012 General Election ballot,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that:
Section 1. A countywide special election is hereby called and shall be held in Miami-Dade County, Florida in conjunction with a General Election on Tuesday, November 6, 2012, for the purpose of submitting to the qualified electors of Miami-Dade County the proposal for amendment to the Home Rule Charter in the form attached hereto and made a part hereof.
Section 2. Notice of such election shall be published in accordance with Section 100.342, Florida Statutes.
Section 3. The result of such election shall be determined by a majority of the qualified electors of Miami-Dade County voting upon the proposal. The polls at such election shall be open from 7:00 a.m. until 7:00 p.m. on the day of such election. All qualified electors of Miami-Dade County, Florida shall be entitled to vote at said election. The County registration books shall remain open at the Office of the Miami-Dade County Supervisor of Elections until twenty-nine (29) days prior to the date of such election, at which time the registration books will close in accordance with the provisions of general election laws. The question shall appear on the ballot in substantially the following form:
CHARTER AMENDMENT REGARDING MAYORAL CONFLICTS IN COUNTY PROCUREMENT

SHALL THE CHARTER BE AMENDED TO PROVIDE THAT WHEN THE COUNTY MAYOR DECLARES A CONFLICT OF INTEREST IN A PARTICULAR PROCUREMENT OF A COUNTY CONTRACT, THE CHAIRPERSON OF THE BOARD OF COUNTY COMMISSIONERS SHALL EXERCISE ALL AUTHORITY PROVIDED BY THE CHARTER OR THE COUNTY COMMISSION TO THE MAYOR WITH REGARD TO SUCH PROCUREMENT INCLUDING THE AUTHORITY TO RECOMMEND A BID WAIVER?

YES

NO

Section 4. The form of the ballot shall be in accordance with the requirements of general election laws.
Section 5. Early voting shall be conducted in accordance with the requirements of general election laws.
Section 6. Absentee paper ballots may be used by qualified electors of Miami-Dade County for voting on this question. The form of such absentee ballot shall be in accordance with the requirements prescribed by general election laws.
Section 7. A sample ballot showing the manner in which the question or proposal aforesaid will appear at this election shall be published and provided in accordance with the applicable provisions of general election laws.
Section 8. This special election on the proposal aforesaid shall be held and conducted in accordance with applicable provisions of the general laws relating to elections and the provisions of the Miami-Dade County Home Rule Charter. The County Mayor or his or her designee, the Finance Director, and the Clerk of the County Commission are hereby authorized and directed to take all appropriate actions necessary to carry into effect and accomplish the provisions of this resolution. This election shall be a nonpartisan election. Election officials in connection with this election shall be appointed in accordance with the provisions of general election laws.
Section 9. This election shall be canvassed by the County Canvassing Board, in accordance with the provisions of Section 3.07 of the Home Rule Charter.

OTHER
MIAMI-DADE COUNTY HOME RULE CHARTER

ARTICLE-51

ADMINISTRATIVE ORGANIZATION AND PROCEEDURE

* * *
SECTION 5.03 FINANCIAL ADMINISTRATION

* * *

D. Contracts for public improvements and purchases of supplies, materials, and services other than professional shall be made whenever practicable on the basis of specifications and competitive bids. Formal sealed bids shall be secured for all such contracts and purchases when the transaction involves more than the minimum amount established by the Board of County Commissioners by ordinance. The transaction shall be evidenced by written contract submitted and approved by the Board. The Board, upon written recommendation of the Mayor, may by resolution adopted by two-thirds vote of the members present waive competitive bidding when it finds this to be in the best interest of the county. >>Notwithstanding any other provision of the Charter to the contrary, in circumstances where the Mayor informs the Chairperson of the Board of County Commissioners in writing that he or she has a conflict of interest in the solicitation, evaluation, award, or recommendation of award of a contract, the Chairperson of the Board of County Commissioners and not the Mayor shall have all authority provided by this Charter or the Board to solicit, evaluate, award or recommend the award of such contract including, but not limited to, the authority to recommend a bid waiver in writing.<<

1Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.