June 20 marked the first North Miami Beach commission meeting since Commissioner Michael Joseph was reinstated to office by a judge, and since former Mayor Anthony DeFillipo was suspended for voter fraud. Vice Mayor Jay Chernoff chaired the meeting as acting mayor in accordance with the city charter.
It was a regular city meeting regarding regular city business – until it wasn’t.
(Samantha Morell for Biscayne Times)
North Miami Beach Commissioner Michael Joseph
Solid waste, Washington Park community center and the pending senior center project all dominated the meeting up until the time came for commissioners’ remarks. Joseph, with litigation initially brought against him by Chernoff now all but resolved, spoke publicly on the dais about DeFillipo without reserve.
“Some commissioners, like myself, recognized, along with the [former] city attorney, that Mr. DeFillipo was an illegal mayor because he was not living in our city,” he said. “Other public officials sided with Mr. DeFillipo, taking actions to block commission meetings to discuss this matter and any inquiry into Mr. DeFillipo’s residency.”
Joseph condemned those who supported DeFillipo without question and, in a statement made to the Biscayne Times prior to the meeting, asserted that his fellow commissioners “have a lot of explaining to do.”
The churn inside was at the same time reflected just outside North Miami Beach City Hall, where a group of individuals held up signs calling for the resignations of those who “supported the criminal,” with Chernoff, Commissioner Phyllis Smith and Commissioner Fortuna Smukler referred to by name.
Legal quandaries
Joseph, an attorney, says the city and its taxpayers’ dollars are now left vulnerable to future lawsuits because of the DeFillipo debacle. Defending his actions to boycott past commission meetings in protest of the former mayor’s questionable residency status, the commissioner worries that the criminal charges against DeFillipo confirm his illegitimacy as mayor and nullify any decisions made under his direction.
In Joseph’s eyes, that’s exactly why he and Commissioners McKenzie Fleurimond and Daniela Jean repeatedly missed meetings, breaking quorum and halting city business for months.
(MDCR)
Former North Miami Beach Mayor Anthony DeFillipo was criminally charged with voter fraud in May.
“I tried to resolve this situation amicably, but instead I was personally and professionally attacked … I was vilified by the public and the supporters of Mr. DeFillipo, who gaslit the community and colored these issues as conspiracies,” said Joseph.
Joseph similarly fears that attorney Michael Pizzi has a conflict of interest after representing Chernoff and DeFillipo in prior lawsuits, interfering with the attorney’s pending contractual obligations for watchdog investigations into corruption and malfeasance.
For these vulnerabilities, Joseph says, interim city attorney John Herin is to blame.
“These actions should have never taken place if the city had good legal counsel, adequate legal counsel, but the city attorney here with us today said he reviewed the facts and said there was no problem, even though the governor, the state attorney and a circuit court judge indicated disagreement with his view of the law … The cover-up is always worse than the crime,” said Joseph.
“[Joseph’s] characterization of the legal advice that I have provided to you all is incorrect and mixes and matches facts and the law,” responded Herin. “I stand by every piece of advice that I have provided to this commission.”
When asked by Smukler whether the city was indeed at legal risk for effectuating DeFillipo’s mayoral status despite the unresolved residency claims, Herin said no. He also said his conversation with a representative from the Florida Bar ethics hotline concluded that there was no conflict with Pizzi’s continued responsibility to the city, either.
“When we ask him, ‘Hey, is this going to affect us down the road?’ He says no – no legal opinion, no case law, nothing, just, ‘Hey, it’s not going to happen,’” said Joseph.
(Stephanie Kienzle via Facebook)
Individuals holding up signs calling for the resignations of former North Miami Beach Mayor Anthony DeFillipo’s supporters outside the June 20 commission meeting at City Hall.
“The concern is that we’re voting on things without legal research … [A vote] should not take place if you don’t have the proper full research or documented responses from either the governor’s office on issues, the Florida Bar on issues. I’m sorry, but a phone call to a 1-800 number is not good enou
gh to make a decision,” added Fleurimond.
Herin promised to further explain his legal decisions, either publicly or privately, if the commission wished, but had no further comment when asked for clarity by this publication.
The city is now beginning the process of searching for a permanent city attorney, to which Herin himself can apply. As for DeFillipo’s vacancy, a special election to fill the seat has not yet been set, although Herin told the Times that there is a target date of Oct. 3.
Serious allegations
The claims against Herin don’t stop there, however. The interim city attorney also is being accused of theft for paying Pizzi’s legal fees without city authorization.
Fleurimond noted how the city discussed incurring those fees although it was in DeFillipo’s personal capacity that he had sued to restore the city’s quorum. At an April 18 meeting, Herin was directed to assess the fees and bring an amount back to the commission for final approval. The latter request was never fulfilled, but Herin authorized the checks anyway.
In an email sent by Herin to commissioners with Pizzi copied, legal fees for quorum litigation amount to approximately $111,500.
Fleurimond also raised concerns over staff’s failure to pay former city manager Arthur “Duke” Sorey’s sick and accrued vacation pay per the commission’s order. Fleurimond said he was surprised to receive a letter in late May, two months after Sorey was fired, by an attorney demanding that those dues be paid.
(Samantha Morell for Biscayne Times)
North Miami Beach Interim City Attorney John Herin
Interim city manager Mark Antonio explained how he would not pay Sorey until receiving authorization from Herin, who said it was due to an abundance of caution amid the pending investigation into Sorey’s actions that the payment was not sent out. Herin also noted that the report on that investigation, conducted by Pizzi, is due to the city within 20-30 days from last month’s meeting.
When asked whether the city would like to give direction to pay Sorey his sick and
leave pay at the June 20 meeting, Fleurimond said he did not want to interfere with the matter now that an attorney was involved.
“With all due respect, Commissioner Fleurimond, you can’t have your cake and eat it, too,” said Herin, although he quickly apologized for the statement.
“This is not about issuing a check right now or getting anybody their money right now,” responded Fleurimond. “This is very clearly about direction given to your office or the manager’s office, and it’s clearly about what legally we’re supposed to be doing versus how we open ourself up to challenges by this letter I’m seeing here.”
Antonio attempted to take the blame, adding that Pizzi himself had recommended against the payment, but Chernoff ended the discussion at that moment, saying it was heading in the wrong direction.
Unanswered questions
(Samantha Morell for Biscayne Times)
Commissioner McKenzie Fleurimond raised concerns over interim city attorney John Herin at a June 20 North Miami Beach commission meeting.
With allegations of theft, neglect, corruption and fraud running rampant, Smith’s consideration of a forensic audit should come as no surprise.
“I think the public’s been yelling for it,” Smith said, “and I don’t think it’s a waste of money, even if they find nothing.”
What the scope of that audit would be and whether North Miami Beach will truly spend the money to engage the service is still undecided. The city is currently finishing up its regular annual audit, which is far less extensive or decisive than what the commission seemed to be considering last month.
Also pending is whether the city will choose to appeal Miami-Dade Circuit Judge Peter Lopez’s decision to reinstate Joseph into office. Chernoff and Pizzi had attempted to do just that earlier in June, asking Lopez to withhold his motion until a higher court had the time to opine. Lopez did not grant their wish.
Joseph’s attorneys nevertheless argued that neither Chernoff nor Pizzi have the right to seek an appeal without the commission’s approval. As such, Herin asked the commission to make that decision June 20. As the clock struck midnight, however, Chernoff adjourned the meeting, leaving the appeal question unanswered.