Volsky’s Final Liz View



This, hopefully, will be the last column about City Attorney Elizabeth Hernandez. As most people know, Hernandez is departing Coral Gables December 31 to look for fresh wood and pasture new. She will not be missed. (Except, it seems, by one remaining oleaginous City Hall poodle.)

But she is leaving in her wake a number of questionable decisions and actions that have adversely impacted Coral Gables taxpayers. Some have been commented on before, others might conceivably be discovered in the months to come. After all, the disgraced city  manager and Hernandez’ closest collaborator David Brown left the city two years ago (with a bundle of cash upon her recommendation)  yet his misdeeds still emerge. Before the end of the year, the international accounting firm Price-Waterhouse-Cooper is to present its report on the lengthy financial relations between the city and the Biltmore Hotel. Most people expect the report to disclose Brown’s serious bungling,  if not worse. Also in December, the City Commission will vote on a new Coral Gables Museum management contract. The old one, with a private entity called Coral Gables Museum Corp., was drafted by Brown. It was so deficient that apparently even Hernandez, as was her duty to do, didn’t approve it.

But Hernandez does have a record  of  her own involvement with the museum, especially with the 2004 hiring of architect Jorge L. Hernandez (no kin) as the project’s consultant.  The tale that follows is not accusatory. But there is no gainsaying the reality that democratic society rests on the sanctity of  the law. City documents which lay out the facts uncannily reveal who follows  the law and regulations and who ignores them.

It took more than three months to gather most, but not all of the facts about the museum consultant search.  Several people involved in process claimed they didn’t remember details, others refused  to talk about it.   Yet it still rankles some participants. “There were many irregularities in the     process and everybody new about it,” said one professional who asked not to be quoted by name. Why didn’t he and the others protest? “ There was no point to object. It was clear from the beginning to whom City Hall powers that be wanted to give the job.”

Obtaining relevant city documents hasn’t been easy either. Several weeks ago, Hernandez was requested to produce for inspection an email she wrote on January 7, 2004, which under  Florida 119 Statute as its “custodian” she had to show to “any person” asking for it.  I had a copy of the email but wanted to see whether the city attorney followed the law. She did not. Instead she asked   the Information Technology (IT) department to provide access to the document.  IT in turn said it had to be paid  $95.68 first.

The Hernandez email, which consisted of only 11 words, was not an ordinary message.  It concerned a solicitation for “Professional Services  (by) a team of consulting firm or Architects and Engineers for the reconstruction and rehabilitation” of the old Police and Fire station, at 2185 Aragon Avenue.  The work included “a landscape design for an urban park” immediately to the north of the old building. According to a “LEGAL NOTICE” posted late in 2003 BY Coral Gables under Chapter 287.55 Florida Statutes for such professional services, ”Interested Consultants MUST (my capital and boldface) submit ten (10) copies of the following forms and information,” among them  “Proof of authorization to transact  business in the State of Florida from the Secretary of State…”

As per the “Legal Notice” the applicants for the job “to be eligible for selection consideration…must submit all requested information by 5:00 p.m. on January 12, 2004 to Liz Ferrer, P.E. Project Engineer,” an employee of the city’s Public Works department.

On Jan. 7, 2004, at 11.51 a.m., prospective applicant Hernandez emailed the city attorney the following: “The RFP (Request For Proposal) for the Coral Gables Museum states that interesting consultants must submit ‘Proof of authorization to transact business in the State of Florida from the Secretary of State.’ Would my professional license and city and county occupational licenses satisfy this requirement of (sic) I need the Certificate of Authorization for Architecture from Tallahassee as well? If I need the latter, I will not be applying for this project since this paperwork takes 4 to 6 weeks to be processed. Thank you.”

One hour and 26 minutes later, on 1:17 p.m., from her BlackBerry attorney Hernandez replied architect Hernandez with 11 words, copied to Liz Ferrer and Dona Lubin, at the time David Brown’s assistant: “I am of the opinion that the former should be sufficient.” Thus our city attorney declared that a subjunctive “should” trumps  Florida’s obligatory “must.” Queried about  Hernandez’ interpretation of the Florida law, one lawyer quipped: “It makes one wonder how she managed to pass  the Florida bar.”

Moreover, Hernandez called her 11-word email CONFIDENCIAL COMMUNICATION.  Florida law specifies that a search for professional services under FS, Chapter 287.55 must be totally transparent and cannot include restricted communications. The Legal Notice, signed by City Clerk, Walter J. Foeman, stated that additionally the “Miami-Dade County’s ‘Cone of Silence’ Ordinance 98-106 “specifically prohibits communication in regard of this proposal solicitation with the City of Coral Gables Staff except by written means, with a copy filed with the City Clerk. “

Asked whether Hernandez and the city attorney had filed with his office a copy of their respective emails, Foeman said that neither did. The most important part of the   Legal Notice, which presumably attorney Hernandez had read and approved, was that “violation of Ordinance 98-106 by any proposer shall render any proposal award violable.”  Thus while architect Hernandez could have legally contacted the city attorney rather than Public Works employee Ferrer – the recipient of the obligatory “MUST” documents – his failure to submit to the City Clerk a copy of his ex-parte email to Hernandez constituted a violation of the County’s “Cone of Silence” which “voided”  being awarded the museum job.

Interviewed several times about her decision to validate Hernandez inclusion in the architect selection process without the state-required documents, Ferrer was evasive. First she said: “I accepted Liz’s email as the legal opinion.”  But apparently Ferrer and some “others” (she didn’t remember who), were not fully convinced of the opinion’s validity. On September 10, Ferrer recalled that after Hernandez presented “his application package,” she and several “others” met on the issue in the city attorney’s office. “How many times did you go there,” Ferrer was asked. “I don’t remember.”  City Clerk Foeman said that neither the city attorney nor Ferrer had not submitted to his office the Ordinance 98-106-required records of their meeting or meetings at which Ferrer was n finally persuaded to accept architect Hernandez’ incomplete application package.

On February 23, 2004, an eight-member selection committee chose Hernandez as the museum consultant over three prestigious local architectural firms. On March 23, 2004, the City Commission, by Resolution R-2004-63, awarded him the museum job contract “for the amount not to exceed $300,000.” On November 8, 2005,  the commission, by Resolution N0 2005-212, authorized city manager David Brown, “pursuant to Resolution R-2004-63,”  to increase Hernandez’ contract by $50,000. On December 12, 2006, by Resolution N0 2006-235, the commission permitted Brown to add another $100,000 to Hernandez’ fee, an increase also legally based on the original Resolution R-2004-63, “approved as to form and legal sufficiency” by Elizabeth Hernandez.

While regarded by many professionals as a highly inflated remuneration, the original $300,000 fee was legally correct. Not apparently so the two subsequent increases totaling $150,000. They would have been had their legal underpinning: “pursuant to Resolution  R-2004-63” existed in that Resolution’s text.  R-2004-63, after stating, twice, that the amount of the Hernandez contract cannot “exceed $300,000, noted in paragraph 5 the following:  “In the event that the City Manager is unsuccessful in contract negotiations with Jorge L. Hernandez, Architect, P.A., then the City Manager is hereby authorized to negotiate and execute a contract with the other two firms according to their ranking.”

Brown negotiated only with Hernandez. Therefore clearly the resolution did not give him the right to increase Hernandez fee by 50 percent.

There was another, major change in the museum project.  The sensibly-planned “urban park” on the northern side of the old building to be a venue for gatherings and parties “al fresco” next to the museum, was mysteriously scuttled. What role Elizabeth Hernandez had in changing the city-approved original Old Police and Fire station project probably will never be known.

Mr. Volsky also indicates

Also, although the City approved Hernandez’ salary as being only $450,000, through May 2010 he received more than $490,000.

About Stephen E. McGaughey
Resident of the City of Coral Gables

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