Judge Orders Black North Miami Beach Commissioners to Show Up For Work While Court Battles Continue Over Mayor's Residency

All eyes are on the city of North Miami Beach as an ongoing dispute between members of its governing body drags on for another month in the face of pending lawsuits over the mayor’s residency and meeting attendance.

After February's canceled commission meeting brought on by a lack of a quorum heightened tensions, it’s unclear whether the scheduled March 21 or April 18 meetings will also face the same fate.

For three consecutive months, the commission has not had a quorum because Commissioners Michael Joseph, McKenzie Fleurimond and Daniela Jean have either left during the meeting or been absent altogether.

Their absence left only four – Commissioners Jay Chernoff, Fortuna Smukler, Phyllis Smith and Mayor Anthony DeFillipo – out of the required five elected officials required to conduct business.

The unprecedented issue has residents wondering whether Florida Gov. Ron DeSantis’ office and the courts can intervene to either force absent commissioners back on the dais or settle the matter on DeFillipo’s residency. Tied to the residency question are allegations that DeFillipo may have committed voter fraud in the past election, which is now being investigated by the State Attorney's office.

“Under my interpretation of the law, the governor would not be able to intervene but under my interpretation, the governor wouldn’t have been able to suspend the Tampa state attorney either,” said Juan-Carlos Planas, a former Florida representative who specializes in state and local government law.

“Whether or not the governor realizes the limits of his power, I don’t know,” he continued. “What I can say is if the mayor voted at the address of his old house and no one related to him lives there and it’s in a different school district, that would be under the purview of the elections police, which is under the governor.”

But soon, the Black commissioners may be left with no choice but to return to their post because of the city charter. It states that if a commissioner fails to attend meetings for a period of 120 days, their seat will automatically become vacant.

In a hearing at the end of January, Pizzi filed a motion to reduce the city commission quorum to four, but it was denied by Judge Valerie Manno Schurr. She was also asked to consider a motion to require commissioners to attend the Feb. 21 meeting but said she had no authority to do such a thing. Then the judge reversed course on March 2, ordering commissioners to attend their next commission meeting on March 21 and a trial date to determine DeFillipo's residency is being bandied about for the end of March.

On behalf of Chernoff, Pizzi has also filed a lawsuit asking a judge to remove Joseph from his seat on the basis that the latter has exceeded the number of meetings a commissioner is allowed to miss. So far, that has not happened.

“A court cannot force anyone to attend a meeting,” Planas told Biscayne Times, who shares a friendship with both DeFillipo and Joseph. “That’s separation of powers, but the court may have the ability to say that someone has surrendered their position according to their charter. But again, to remove some officials that were elected by the public is going to be hard.”

There's no word yet if any of the three commissioners who have missed meetings will challenge the judge's order, but so far Commissioner McKenzie Fleurimond is the only one who has said he'll abide by the ruling and be in chambers on March 21.

Conflicting legal opinions

Conflicting legal interpretations of the charter have only exacerbated the situation.

“Based on city public records, there is no indication that you have violated section 2.5 of the city’s charter,” wrote the city’s attorney, Hans Ottinot, in an email to Joseph.

Ottinot explained that the 120-day countdown began at the first meeting Joseph failed to attend, which was on Dec. 20, 2022. If that’s the case, Joseph has to show up to a meeting by April 19 to avoid vacating his seat.

City Clerk Andrise Bernard, in an email to Chernoff, counted a total of 126 days from Oct. 18, 2022, to Feb. 21, 2023. In this instance, the clock began ticking on the date of Joseph’s last attended meeting.

There have been no arguments that Fleurimond and Jean, who were present for the December meeting, have surpassed the 120-day period, too.

According to Planas, a judge can ultimately determine when the timeline started to establish whether or not the commissioners still have more time.

“My reading of the law is that Mr. Joseph has vacated his seat,” said Pizzi. “Commissioner Joseph has not attended a city commission meeting in over 120 days. The judge made clear in her order and in her statements at the hearing that [he] does not have the right to miss meetings because he is challenging the mayor’s residency.”

On the contrary, some commissioners say they have been legally advised to miss meetings for that very reason.

Joseph and McKenzie have refused to step foot in a commission meeting since an outside law firm, hired by Ottinot to investigate the residency concerns, determined that DeFillipo may have violated the city charter by residing in Davie, Fla.

Jean is seemingly taking the same action though she has failed to respond to interview requests from The Biscayne Times about her absence. During a Jan. 17 meeting, Jean told the city clerk she was running late but never showed up.

“The law is very clear that when there is a challenge to a public official’s residency or any other qualification, the person continues to serve and vote until a court rules otherwise,” said Pizzi.

DeFillipo maintains that he is a bona fide resident of North Miami Beach, calling the accusations against him a “political hack job.” Refusing to step down in light of the external law firm’s 42-page memorandum on his residency status, he says a judge, and not commissioners, should determine whether he is the city’s mayor or not.

“Whether or not the mayor is spending nights outside the city, I think, is irrelevant,” said Planas. “Just on the face, he meets the basic legal requirement of residency … The commissioners have to realize that there is not a for-sure definition for residency in the law, but, there are elements that the mayor meets.”

A spokesperson from the Miami-Dade County Commission on Ethics & Public Trust said the agency’s policy barred him from confirming or denying whether there was an ongoing investigation into DeFillipo’s residency after ethics complaints were filed against him.

Opposing commissioners argue that DeFillipo has no power to preside over commission meetings.

Standing their ground

“After years of repeated public corruption scandals, I was elected to change things,” Joseph told The Biscayne Times a day after the Feb. 21 meeting. “Trust in our city is the biggest issue for voters. This is where I am expected to hold the line against fraud and abuse.”

Joseph said he won’t allow the lawsuit to distract him from doing what he believes is the right thing.

“My fellow commissioner, Mr. Chernoff, literally used the word ‘scare’ to describe his goal of intimidating his colleagues and I with his frivolous lawsuit,” he noted. “It’s Mr. Chernoff and his attorney that are scared for the courts to conclude the same way with the city administration and the outside counsel that Mr. Defillipo has been living in another city, in another county, and that Mr. Chernoff has been supporting a fraud all this time.”

“It’s been since Oct. 18 since this city [convened] and we have not been able to conduct city business since it’s [been] over four months,” said DeFillipo when commissioners failed to show up for last week’s meeting. “There is no city that deserves this, we don’t deserve this … The people that really love and care for this city are the ones you see here today.”

Some residents who spoke during public comment threatened to have Ottinot disbarred for allegedly advising the Black commissioners to sit out meetings. They also pointed fingers at City Manager Arthur Sorey III for allowing said commissioners to plan and sponsor events these last few months despite not showing up to meetings.

“It’s a slap in the face to everybody in this community plus everybody up here that we’re showing up for meetings and they’re not,” said Chernoff, instructing the city manager to postpone any events the missing commissioners are scheduled to attend.

In a move to send a message to the missing commissioners, Smukler removed their name plates and handed them to Bernard, stating they can have their title and plates back once they return. Ottinot stormed out of the meeting at that point.

Though many residents applauded and even welcomed Smukler’s actions during the meeting, she’s faced backlash from some community leaders.

“You had the opportunity to show leadership in the face of a very trying situation for the commissioners and residents,” Rabbi Robert Kaplan told Smukler in an email. “But rather than rise to the occasion, you let us down and brought dishonor to your title.”

“I am disheartened to learn of their colleague’s actions at a recent meeting, where their names were publicly removed from the dais,” said Charnette Frederic, chairwoman of the National Haitian American Elected Officials Network, in a memo sent last month throwing support behind the Black and Haitian American commissioners. “During Black History Month, we cannot sit idly by and allow such actions to occur. Such an act is akin to Black erasure.”

“I would wish that these folks can resolve this. If the mayor did indeed move out of the city, then he’s got to take responsibility and forego his seat,” added Planas. “Both sides need to come together for the residents … They had their issue but now it’s time to get back to work. Responsibility has to kick in.”

This story was updated from the original on March 3, 2023, to reflect the result of court hearings held on March 2 and 3.