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 of No 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.

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 OutThe-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 reelection 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.

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-TheVote 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.

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.

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 GetOut-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.

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.