MIAMI-DADE COUNTY COMMISSION ON ETHICS AND PUBLIC TRUST PROBABLE CAUSE MEMORANDUM

To:

Commission on Ethics and Public Trust

From: Michael P. Murawski, Advocate Date: June 2012 Re: C12-10, 11, 12 and 14 (Pascuzzo v. Bateman)

Recommendation: No Probable Cause 1 exists to believe that Respondent, Steven Bateman violated the Miami-Dade County Conflict of Interest and Code of Ethics Ordinance (the Code). Background and Investigation: Homestead resident Pat Pascuzzo filed several complaints against City of Homestead Mayor Steven Bateman (Bateman). All four complaints essentially involve the alleged improper use by Bateman of a YouTube video produced for his re-election campaign portions of which were taken from video specifically commissioned for the City of Homesteads State of the City Address and paid for by the City.

Page 1

C12-10: In C12-10, Complainant alleges that Bateman commingled his campaign activities with City Hall, in that Frank May (May) is a political consultant to the Mayor while also a paid media consultant to the City. Complainant also alleges that Batemans assistant, Lourdes Lanio (Lanio), was involved with matters relating to Batemans re-election campaign while on City time. Investigation showed that May, was, in fact, a campaign consultant for Bateman. At the same time, May was under contract to provide services to the City on an as needed basis. For example, May was requisitioned to write the speech for the State of the City Address.2 C12-11: In C12-11, Complainant alleges again that City workers, specifically Lanio and Begone Cazalis (Cazalis), were heavily involved in negotiations with the filmmaker shooting video on behalf of the City and who also subsequently edited a YouTube video on behalf of the Mayors re-election campaign.

Probable Cause exists where there are reasonably trustworthy facts and circumstances for the Ethics Commission to conclude that Respondent should be charged with violating the Miami-Dade County Conflict of Interest and Code of Ethics ordinance
2

This arrangement does seem to constitute a violation of Florida Statute Section 112.313(7) entitled Conflicting employment or contractual relationship. This Statute is enforced by the State of Florida Ethics Commission. The portion of the Miami-Dade County Conflict of Interest and Code of Ethics ordinance that roughly corresponds to 112.313(7) is 2-11.1(u), entitled Prohibition on certain business transactions. The County ordinance, however, has a safe harbor provision that allows an official to contract as long as the transaction is an arms length transaction made in the ordinary course of business. There is insufficient evidence to show that the agreement between Bateman and May for May to serve as a campaign consultant was anything less than an arms-length transaction.

Page 2

C12-12: In C12-12, Complainant reiterates his belief that a conflict of interest was created by allowing May to order a video edited from the taxpayer funded State of the City speech video. Complaint also repeats his concerns over having May involved with paying the filmmaker for the campaign YouTube video and that the payment was made at City Hall.3 On or about September 12, 2011, the Public Information Officer for the City of Homestead, Cazalis, contacted Jorge Delgado (Delgado) the owner of Global Production Services (GPS). Delgado/GPS had provided services to the City during its 2010 State of the City Address which involved, among other things, filming the Mayors address and recording video for later use on the Citys website. Cazalis contacted Delgado seeking to have him perform the same services for the October 27, 2011 State of the City Address. Delgado agreed to undertake the job and subsequently met with Respondent (Mayor Bateman) to review the approach to be taken on filming the speech and other particulars. According to Delgado, the Mayor wanted to expand the scope of the services and wanted more than what Delgado had done in the previous year. According to Delgado, the Mayor wanted more video clips and shootings at various locations

The evidence that the payment was made at City Hall is inconclusive, however, even if the payment did take place at City Hall; there is no prohibition on paying a campaign vendor inside a City owned building. The prohibition is only on soliciting or accepting a campaign donation inside a City owned building. (Florida Statute 106.15(4))

Page 3

Delgado agreed to this, advising that more equipment, gear and time would substantially increase the cost to the City.4 The work on filming the shots for the State of the City Address was, without doubt, commissioned by the City. To some extent, the Mayors administrative assistant, Lanio, was involved in the process and, according to May, he (May) was commissioned by the City to provide script writing for the Mayors speech. Ultimately, the original concept for the State of the City video did not turn out as envisioned and what was used at the State of the City Address was a continual loop of various video shoots displayed on several monitors throughout the auditorium while the Mayor gave his speech. A few days after the State of the City Address, the Mayors campaign consultant, May, contacted Delgado to inquire if Delgado could edit/produce a YouTube video to be used for the Mayors re-election campaign. Delgado agreed to do the job for five-hundred dollars ($500.00). According to May, he specifically advised Delgado not to use video that Delgado had shot as part of the Citys YouTube video. May viewed the YouTube video, along with COE investigators, and advised that he provided a CD to Delgado

Delgado ultimately sued the City for fees he believed were due and owed to him and the City resolved the lawsuit.

Page 4

that contained a series of still shots and graphics to be used in the YouTube piece.5 May provided the voice over for the YouTube video. Relevant ordinance: The Miami-Dade County Conflict of Interest and Code of Ethics Ordinance states, in Section 2-11.1(g), entitled Exploitation of official position prohibited, states, in pertinent part, that : no person included in the terms defined in Subsection (b) (1) through (6)6 and (b) (13) shall use or attempt to use his or her official position to secure special privileges or exemptions for himself or herself or others Review and Analysis: There is no probable cause to sustain the allegation that Mayor Bateman exploited his official position by using portions of the State of the City Address in his YouTube, campaign video. The State of Florida Ethics Commission (FSEC) case of Blackburn v. Commission on Ethics, 589 So.2d 431 (1991), is illustrative. Louise Blackburn was a county commissioner in Gadsden County. A local garbage collection fee was imposed by ordinance and became a contested and divisive issue. After the ordinance was passed, it became an issue in Blackburns re-election campaign. While she was a county commissioner, she requested the Director of Planning and Zoning to prepare a written article on the garbage ordinance containing
5

Delgado reviewed the YouTube video and advised that approximately eight (8) of the nineteen (19) images in the YouTube video came from video that he had shot for the State of the City Address; the remaining shots were provided to Delgado by May. 6 Bateman, as an elected official in the City of Homestead, is included in Subsection (b) (1).

Page 5

various statistics about waste disposal. Subsequently, Blackburn used the article in political speeches and in her re-election campaign materials. The FSEC found that Blackburns actions violated the Misuse of Public Position statute. The District Court of Appeal, First District, reversed the findings of the FSEC. The Court held that the county employees work product was intended to be used for dual purposes: one, to inform the public about an issue of importance in the community and two, to assist Blackburn in her re-election. The Court stated that the first purpose was clearly a legitimate, valid, public purpose. The Court went on to say that there was no basis for converting that valid purpose into an illegal or unethical act simply because the information was also to be used in a political campaign. Likewise, in the instant case, it is quite clear that the filmmaker, Delgado, was hired by the City to produce a State of the City video and that video was, in fact, produced and used by the City for that public purpose. Merely because the Mayor subsequently utilized portions of the State of the City Address video in his campaign You Tube video, similarly does not convert the valid purpose of the State of the City Address video into an illegal or unethical act. There is insufficient evidence to show that the only purpose for having the City hire the filmmaker was to provide film/video for the mayors campaign use. Moreover, inasmuch as the State of the City Address video was produced by the City and paid for with public funds, it constitutes a public record pursuant to Chapter 119, Florida Statutes. Because the State of the City Address is a public record, it is available to any citizen and may be used for a lawful purpose, including use in a political campaign.

Page 6

In addition, our investigation did not uncover any evidence that City employees were working on or actively involved with Batemans campaign while on City time, thus there is no probable cause to support that allegation. Finally, it should be noted that complainant Pascuzzo has been made aware of the possible ethics violation that exists under state law and he advised that he will be pursuing the matter with the State of Florida Ethics Commission.

Page 7