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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 Homestead’s State of the City Address and paid for by

the City.

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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

Bateman’s assistant, Lourdes Lanio (Lanio), was involved with matters relating to

Bateman’s 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 Mayor’s re-election campaign.

1 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.

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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

Mayor’s address and recording video for later use on the City’s 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

3 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))

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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 Mayor’s 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 Mayor’s 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 Mayor’s campaign

consultant, May, contacted Delgado to inquire if Delgado could edit/produce a

YouTube video to be used for the Mayor’s 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 City’s YouTube video. May viewed the YouTube

video, along with COE investigators, and advised that he provided a CD to Delgado

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

the lawsuit.

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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 Blackburn’s 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).

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various statistics about waste disposal. Subsequently, Blackburn used the article in

political speeches and in her re-election campaign materials. The FSEC found that

Blackburn’s 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 employee’s 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 mayor’s 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.

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In addition, our investigation did not uncover any evidence that City

employees were working on or actively involved with Bateman’s 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.