MIAMI MIRROR TRUE REFLECTIONS

Ask City Attorney Jose Smith

CAN A KING FIRE A LEGISLATORS AIDE?

December 7, 2013 By David Arthur Walters MIAMI BEACHI was incredulous when I first heard on the e-text grapevine that one of the first things Philip King Levine had done after becoming mayor of the City of Miami Beach was to fire sitting commissioner Deede Weithorns aide, Alex Fernandez, for endorsing his opponent, Michael Gngora, during the mayoral campaign. Fernandez was handed his dismissal letter, signed by Levine, the day the new mayor was sworn in. On the other hand, gossip had it that he caused sitting commissioner Jonah Wolfsons aide, Leanor Hernandez, to be promoted to his own office, allegedly for taking time off from her duties to campaign for him. Jonah Wolfson, her boss, had originally endorsed sitting commissioner Gngora for mayor, but betrayed him, switching to Levine. Joy Malakoff beat out incumbent Mayor Matti Herrera Bower, who was running for commissioner. Michael Grieco beat out incumbent commissioner Jorge Exposito, while Mickey Steinberg won out over Elsa Urquiza. The newbies claimed they were running against corruption, but the race was cast by some observers, quoting the campaign slogan, Lets Take Back Our City, as part of the classical Miami Beach struggle between Hispanics and Jews for

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weight on the commission seesaw. That struggle has been more or less a love affair. Levine wooed elderly Hispanics to support him, handing out goodies. His girlfriend is Hispanic. Rumor has it that Ms. Weithorn, a member of the old guard, was cowed into submission by threats of losing a key committee position, and therefore did not fight tooth and nail to retain her valuable aide. Oddly, some residents who hate Weithorn love him. Commissioner Wolfson, who fancies himself as a populist, led the faux opposition that unseated the longstanding former city manager, Jorge Boss Gonzalez. It is expected that Mayor Levine will now team up with the so-called reformists on the Commission to effect radical change. Indeed, it seems that King Levine has bought himself a Commission. If his allies thereon refrain from backbiting, the new guard will rule 5 to 2. He has already proposed that he be placed on all key committees. As for the residential neighborhood committees that provide input to the part-time commissioners, he has indicated that he would like to be rid of them so he can serve his customers. I disbelieved the rumor that he had fired Weithorns aidetwo other aides were let go because their respective commissioners would no longer be employed. No, I did not doubt that Mayor Levine is a vindictive businessman willing to suppress free speech. Nor did I believe that he would be disinclined as a professed reformist to expose his all-too-human hypocrisy and continue business as usual at city hall, reigning by traditional retaliation, fear and intimidation. It simply seemed to me that he was not formally empowered to fire a commissioners aide. A mayor under the citys form of government is supposed to be a glorified commissioner who chairs the commission and has no executive authority. No, any malice towards critics would hardly be surprising. This cruise line media business multimillionaire, who put up $2 million in his own money for a presumably figurehead position that pays a mere $10,000, had ominously slapped several journalists with frivolous defamation lawsuits during his campaign in a malicious attempt to shut them up and prevent their further exposure of his businesslike nature. After all, he believes government can be purchased and run like a business, and if employees do not like they way he runs it they must be terminated. Business is not a democracyau contraire. Now the City of Miami Beach has a strong-city-manager, weak-mayor form of government, originally supposed by do-gooder reformers to be a businesslike structure because a business manager would run it free from political motivation and therefore free of the corruption and anarchy associated with democracies. The reformers, most of them members of the elite, thought city bosses like Tweed and Pendergast were grabbing more than their fair share. Not that New York immigrants and Kansas City blacks were complaining about the jobs and beer they were getting for voting for the right candidates. Tom Pendergast, whom we can thank for Harry Trumans ascent to the White House, loved the new professional city-manager system,
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saying it worked much to his advantage. He installed the majority of council members and they appointed his manager, Henry McElroy, who took over the former functions of a strong mayor. There was nothing nonpartisan in this political business: the Democrats ruled the Council by at least one vote, 5 to 4, and McElroy used it as his Rubber Stamp. Toms cement business thrived during the Depression as McElroy, who claimed credit for inventing the first Works Progress Administration, put men to work on public projects, telling them to bring only shovels. McElroy knew how to cook the books to give taxpayers the impression of financial stabilityit was called the McElroy Country Bookkeeping System. Tom was also in the brewing business at the right time. Naturally he had mob connections. The old notion that this new, strong city manager form of business was professional or nonpolitical therefore incorruptible has been debunked since then time and time again. Again, business is not a democracy. Its CEO and department heads and supervisors are not elected. The most power person in the City of Miami Beach government, the city manager, is not elected. He is like a powerful CEO of a business corporation, subject only to the will of a parttime board of directors, members of the power elite with vested interests in business. A minority of stakeholders has the virtual proxy of the majority, as if the system were republican. Occasionally the majority, led by demagogues, may revolt, as they did in the wake of the most recent FBI arrests in Miami Beach. But the revolt is really a palace revolution, or, rather, a change of the guard, and one tyranny is replaced by another unto the end of days. Business as usual, citing its vices as virtues, prevails, and it would always minimize local government intervention that does not serve its purpose. To that end such entities as Hermes, Mammon, Kali, and even the one-god have been invoked. That is not to say that vice cannot do a lot of good if the spoils are properly distributed, if sufficient crumbs trickle down to labor, and beggars on the periphery are tossed enough scraps, to keep the hapless lot from thuggery and rebellion. However that may be, the rumor of the aides firing astonished me as much as the rumor floated a few days before election day, that Weithorn had betrayed Gngora, had secretly sucked up to Levine, and was virtually endorsing him at the last moment. I do not have home access to the Internet, and was unable to pull up the city Charter on my tiny throwaway cell phone, so I conferred with an esteemed expert on Miami Beach government, a Levine supporter who asked that his opinion not be attributed to him after I told him told him that I thought it was balderdash but would be willing to embarrass him nevertheless with his permission. The Mayor shall be the appointing authority for the employees in the Mayor's Office who are in the unclassified service," he said, quoting the Charter. The mayor is commander in chief of unclassified employees in the Mayor's Office. The city commission enacts budgets which, together with its other authority is a check and balance on all office-holders with charter
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authority, e.g. mayor, city manager, city attorney, city clerk. That's how constitutional systems sort out questions like this. Nonsense, I thought. There are no independent branches of government to balance in the weak mayor, professional manager system of government, as there are in our federal government, where a president cannot fire a senators aide. That is why opponents of our citys form of government term it un-American and potentially fascistic, vulnerable to its use as an instrument of a right-wing authoritarian form of government dominated by big business. Huh? The Commission uses its mayor to check commissioners by firing their aides? I asked the local expert. Do you have casuistry on that? Apparently not, so I contacted Weithorn. Can the mayor hire and fire legislative aides at will, thus have leverage over commissioners? Yes, apparently so, but I as a commissioner do not have to give access to my office calendar or phone if I don't like the hire. Is there a legal opinion on the question? I asked the city attorney and that's what he told me. I think it goes back to the days of shared aides and never got changed. My grapevine source of the firing rumor informed me that the story broke in the Miami Herald, so I contacted its Miami Beach beat reporter, Christine Veiga. Are you sure the City of Miami Beach mayor has executive power to cut commissioner's throats by firing their aides discriminately? According to what Jose Smith told me, and to what I read in the city charter, yes, the mayor is the hiring authority over commission aides. Oh, oh, Jose Smith. I have reasons for not believing everything he says, but the mention of him as the legal authority gave me cause to suspect that my intuition was probably misleading me, or rather that I could be ethically right but legally wrong. Smith has lived in Miami Beach for over fifty years and has been in public service for thirty years. It was said that the first Hispanic majority occurred on the city commission when he was re-elected commissioner in 2001, but the balance was actually 50-50 since he is both Hispanic and Jewish (Orthodox Cuban Ashkenazi). He was appointed city attorney in 2006. He has been recognized by a highly regarded publication as one of Floridas top government attorneys, and the local paper named him this years best city official. But he does not take too kindly to my questions, so I finally obtained access to a computer and examined the Charter.

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The Charter states that the City Manager, the City Attorney, and the City Clerk shall appoint and remove unclassified employees in their respective offices. The City Mayor, who shall have no administrative or judicial functions and powers under state law, is the appointing authority for unclassified employees in the Mayors Office, or those employees who serve at will, but the Charter says nothing about their removal. Now jurists when confused by vague or ambiguous statutes have a formal manner of construing or interpreting them to determine their original meaning or what they should now mean, something called statutory construction. But the problem with that formality is that every interpretation of a vague or ambiguous statute has a contrary or opposite interpretation, for that is the very nature of vagueness and ambiguity, which is why the Lord created lawyers. The ancient rabbis used to whip boys who did not beg askance of interpretations of the Torah, accepting whatever the teachers said as authoritative. Now lawyers are supposedly taught to think for themselves, and law professors, to get students to do that, prefer to answer questions with questions instead of straight answers. When my reviewer at work, a tax lawyer, kept doing that, I was afraid to interrupt him with yet another stupid question, so I put his picture in my top drawer and put my questions to it, which prompted me think like he did in his extensive legal memorandums. So in this case I put Smiths biography picture on my screen and asked it why he had decided that the firing of another commissioners aide by a mayor was perfectly constitutional. How can you call yourself a journalist and ask such a stupid question? I imagined he responded. If the manager and attorney and clerk are the head of their offices, who do you believe is the head of the mayors office, when the mayor is the head of the commission and the commission is in the mayors office? Yeah, but the Charter does not say the mayor can fire anyone. Please give me a straight answer. What the Lord giveth the Lord can take away. Whosever can hire can fire. If you have any further questions, hire a lawyer. The fired aide could consult a lawyer or the Labor Department. He was indeed an at-will employee, meaning he was serving at the leisure of his employer, the city, who could terminate him at any time for any reason, providing that the reason was not contrary to public policy. That is, providing that his civil rights were not violated. I do not think he has a good civil rights case. His speech was not suppressed in advance. He spoke freely, and he was fired. This is politics, so get used to it. Classical politics was an extension of ethics, and its aim was the development of character and virtue. But modern politics is vicious in that context inasmuch as it constitutes techniques for distribution of the Absolute
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Power that people worshipped before murdering their deities. That distribution is decidedly unfair where might is right and the egotistical war of all against all is unrestrained by good government. However that may be, Philip Levines behavior thus far bodes ill for the community. What is legal is not necessarily ethical. We can only hope that his reformist colleagues do not succumb to his version of the leadership principle and treat him as a virtual dictator instead of the eunuch that a mayor is supposed to be in the current system. Not that we should not have a strong mayor system to get things done. That being said, he may accomplish a great deal of good although in a mean way. If not, he can be dumped in two years despite his millions and the endorsement of his grateful friend, Bill Clinton. ##

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