April 25, 2012
Michael Murawski, Advocate for the Miami Dade County Commission on Ethics and Public Trust, has declined to further investigate the corruption allegations against Miami Beach Commissioner Michael Gongora, charges he would like to be forgotten because they were already made in a complaint to the Florida Bar and dismissed for lack of evidence.
In the Bar complaint filed March 3, 2011, Club Madonna owner Leroy Griffith and his public relations manager Carl Zublotny affirmed under penalties of perjury that they had met with Commissioner Gongora and his political consultant Randy Hilliard, and that Gongora then said he would present to the commission the question on whether or not to allow Club Madonna to have a liquor license, so that Griffith could promote his cause, provided that Griffith retain Hilliard to find out where the other commissioners stood on the issue beforehand.
Gongora would apparently be barred by the Sunshine Act from discussing the issue with the commissioners in private. Since Gongora had already asked the commissioners for their sentiment at a City Commission Retreat in April 2010, and they had no interesting in pursuing the issue, the suggestion by Gongora to Griffith, if made, would imply that Hilliard might lobby the commissioners for a change of heart before Gongora broached the issue. Griffith said he refused to hire Hilliard, and that Gongora made good on his so-called “attempted extortion” threat, effectively barring him from presenting his licensure proposal to the commission.
Gongora’s attorney, Patricia S. Etkin, responding to the Bar complaint, rendered his account of the meeting, which naturally did not include the corrupt offer alleged:
‘Mr. Gongora denies the allegation that his support of the ordinance amendment was conditioned upon the hiring of Mr. Hilliard to conduct "research" and asserts that there was no "attempted extortion." Mr. Gongora's "silence" during the City Commission meeting on July 14, 2010, is not evidence of an "unsuccessful extortion attempt"; Mr. Gongora's silence merely evidences a decision not to champion the ordinance amendment which was destined to fail, particularly when Mr. Griffith refused to consider reasonable remedial measures.’
Remedial measures would have included the removal of the love seat in front of the club, a measure Griffith had angrily rejected at the meeting, at least according to Gongora’s account of the meeting.
Griffith answered with, “Nowhere in the response are the issues addressed as concerns the act of Extortion that have been set forth in the complaint. At best the response does not address the issues brought to the attention of the Florida Bar.” However, the Bar summarily dismissed the complaint for lack of probable cause due to insufficiency of evidence.
I was disappointed with the finding because I felt the insufficiency of evidence was in part due to an insufficient investigation. For one thing, Hilliard was not interviewed; therefore two statements affirmed under penalties of perjury were simply dismissed as evidence when challenged with an unsworn statement from Gongora’s counsel, without any explanation whatsoever as to why the affirming witnesses were impeached. Are oaths or affirmations worth nothing at all?
I was more interested in the Bar’s conduct than in Gongora’s. Indeed, I know little of the law, and if Gongora had in fact suggested to Griffith that he retain Hilliard, who has lobbied for many others, to sway the commissioners, I would not suppose that the recommendation was illegal. After I examined the Bar file, I was convinced that the accounts of the meeting affirmed by Griffith and Zublotny were true , but I had my doubts as to whether Griffith’s interpretation, that extortion was being attempted, was correct. It appeared to me that the lawyers, i.e. Gongora and his counsel on his behalf, were prevaricating.
I asked the Florida Bar for an explanation of its finding, but no elaboration of the decision was forthcoming from Bar Counsel Tonya L. Avery. It is dangerous to trust officials who are unwilling to explain their conduct. The Florida Bar is accountable only to itself since it is a bar integrated with the Supreme Court of Florida and has arrogated to itself an inherent power to regulate its officers independently of the legislature and executive. Its conflict of interest is inherent in its structure; not only does the Bar license and discipline attorneys, it represents their political and economic interests as well.
Gongora is familiar with my longstanding dissatisfaction with the regulatory conduct of the Florida Bar. When I queried him for an opinion as to its procedures in his case, he evaded my questions, stating that the Florida Bar is “infinitely wise.” Therefore I sent the Florida Bar file along to Joe Centorino, Director of the Miami Dade County Commission on Ethics and Public Trust, and asked him what he thought about it. Centorino said he thought it was a matter best taken up by the State Attorney, not by the Ethics Commission.
After all, I thought, extortion is a crime, and Griffith, in his Florida Bar complaint, had referred to the rule prohibiting a “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Yet I really did not believe that Gongora was guilty of a serious crime. But I did feel that the matter warranted a fuller investigation and a better explanation of any final decision.
I persisted with Centorino, stating that the pretext for his commission’s jurisdiction in this matter could be Sec. 2-11.1(g) of the Conflict of Interest and Code of Ethics Ordinance: “Exploitation of official position prohibited. No person...shall use or attempt to use his or her official position to secure special privileges or exemptions for himself or herself or others….”
“Now I have noticed,” I said, “that the Commission on Ethics and Public Trust, although its scope is quite limited and it does not have very big teeth, does explain its decisions and provide opinions, and in doing so it fulfills its mission to educate the public on important ethical issues in such a way as to gain public trust. Here the Commission on Ethics and Public Trust has an extraordinary opportunity do just that by completing the investigation that the Bar apparently left incomplete, and fully explaining its decision.”
Centorino referred the matter to Advocate Michael Murawski, who declined to pursue the matter for lack of evidence other than the witness statements. I raised the issue of the credibility of witnesses with Murawski, and offered my opinion that the sworn statements of a strip club owner and his marketing manager should not be ignored simply because of the nature of their legal business, that to impeach them as witnesses should require a showing that that were disreputable liars and convicted perjurers et cetera.
Murawski mentioned that Hilliard had once styled himself as ‘The Prince of Darkness,’ so I conducted a brief investigation into his background, and discovered that he reportedly turned state’s witness in a Key West case to gain immunity from bribery-related charge. Hilliard reportedly wore a wire in his “scant” swim trunks at a nudist pool bar—a bag with another recording device was planted nearby—to record a damning conversation with a former county attorney for Monroe County. Hilliard ventured to Miami Beach, where he served the SunPost as political columnist for several years, became familiar with real estate developers through contacts with advertisers who supported the local newspaper, and then took up political consulting with the result that he collected many thousands of dollars from various city commissioners. More recently, in 2009, he filed a complaint with the Commission on Ethics, accusing the City of Miami Beach and the Miami & The Beaches Hotel Association with what appears on its face to be blatant ethics violations regarding lobbyist Stuart Blumberg.
I remarked to Murawski that Commissioner Gongora himself has an illustrious history including forgetting to report $3,000 Griffith gave him in 2009. Although I like Gongora, and believe he has performed well as commissioner, I like many other people have cause to doubt the word of any politician-lawyer even when highly esteemed and sworn (witness President Clinton). But at least when sworn under penalties of perjury, the convicted liar can be sentenced to prison. It would be ironic for a perjurer to go to jail for lying about a crime he did not even commit.
Murawski said that even if there were four sworn statements, two-against-two, the case would amount to “they said against they said,” and that he would not initiate the filing of a complaint against Gongora if the only evidence he had were conflicting statements. He said he would need more than that to substantiate the allegations.
I asked him if he would be inclined to inquire into the matter further if he had a recording of the conversation wherein the allegedly extortionate offer was made, to induce the strip code owner to hire Hilliard in exchange for Gongora’s cooperation in getting the Madonna Club a liquor license even though its entertainers do not wear pasties and thongs. He responded with a “maybe.”
I likewise queried Kenneth Marvin, Florida Bar Director of Lawyer Regulation, on the matter, asking if the Bar had power to grant immunity from prosecution for violation of the state’s eavesdropping law (Fl. Stat. 934.03) to which he responded: “The Bar does not have authority to grant immunity and if the recording is contraband, I'm not sure that we could introduce it into evidence.”
Gongora expressed disappointment that I had made my inquiry with the Commission on Ethics after he had referred me to the “infinite wisdom” of the Florida Bar. As far as he was concerned, whenever the Bar dismisses a complaint, nothing more should be said about it:
“Seldom does media cover the closing of an inquiry due to no substantiation of the allegations,” he said. “The allegations were patently false, which was my position all along. How can I prove that other than through my denial and the Florida Bar's subsequent closure and dismissal of the complaint?”
I pointed out that the Bar complaint and its disposition has been publicized by the Bar according to its Rules, that almost any lay person who read the file as it stood would believe that the allegedly inappropriate behavior took place, and that he should desire that his name be better cleared. I said that I believed that he would, as a lawyer-statesman, want to encourage people like me to illuminate the conduct of public officials—that would naturally include Florida Bar investigators and counsel: “I imagine that you are the sort of public spirited person that welcomes inquiries into the behavior of public institutions and officials, and wish there were more people like me to make them. At least that is the public image I have of you.”
I noted that my original interest was in the Bar’s procedures, not in his particular conduct, and that he had evaded my request for his opinion on that subject. “As you know,” I had said, “after a Bar inquiry is dismissed for no probable cause, the file is in theory made public for a year after the dismissal, and then the file and the record that there was a file is destroyed. The dismissed record never appears on the attorney's webpage at the Bar. Sometimes it is difficult to get a copy of the public file, since the files are not centralized and one has to call and beg a grievance committee secretary to scan it etc. The Bar pages only disclose actual discipline over the last 10 years, and I believe lists are periodically released to the press. The press is not notified of dismissals, nor would anyone know about them unless they constantly telephoned the Bar and inquired about the disposition of a case, if they had heard about it beforehand. That policy would obviously allow the bar to conceal its own conduct in respect to dismissals, and would also conceal a pattern of misconduct from consumers when an attorney is accused of the same wrongdoing by number consumers. On the other hand, it would allow an attorney to be smeared in the press without releasing information as to his acquittal. In your case, (Miami Herald reporter) David Smiley did not have enough space in his exhaustive article to mention your name and that the Bar had cleared you. I would like your opinion as to whether you agree with the present Bar policy, or if you believe more transparency is needed in respect to dismissed cases.”
In any case, Gongora seems to think that people tend to believe the worst; therefore any further publicity would damage his reputation: “Unfortunately in politics your name is rarely cleared,” he said, “Mere allegations, even if untrue , grab headlines and readers' interest.”
My opinion is that the scandal is already out there forever on the Internet, along with the Bar file, so further publicity about Gongora’s affair with Club Madonna, of whose conduct he said he does not morally disapprove, does not add to the damage, and may ameliorate it. Should we not question the published decisions of courts and committees? Of course we should, and so do those very courts and committees, for there is no progress without criticism. In fact, media frequently gives those decisions a great deal of attention.
It is to that end that I decided to pursue the matter a little further in hopes of seeing what was underneath the political pasties and thongs. I appreciated the position of the ethics commission Advocate; nevertheless, I, as a layman without any training in the law, would not dismiss the value of an oath sworn, or, in the alternative, a declaration affirmed, under penalties of perjury.
Gongora knows that I would have dropped the issue entirely if he and Hilliard had presented the media with affidavits repudiating the oaths or affirmations made by the owner of Club Madonna and his marketing manager. I would rather see Gongora and his consultant subpoenaed to testify; if they denied wrongdoing, we would have a true stalemate, unless a recording was brought forth; if they pleaded the Fifth Amendment, we would have a false one.
Curiously, during my cursory research into the credibility of the witnesses, I encountered an anonymous statement, made in the Genius of Despair Blog on 15 February 2007, that ethics commission director Centorino was at that time a friend of Randy Hilliard for ten years:
“Of course nearly every sitting Miami Beach Commissioner has paid off Randy Hilliard, as nearly everyone has admitted in private to me since 1994. What is outrageous is as I write, he is continued to run a political consulting business from a sublet residential apartment and Code Compliance is so scared of his influence on the Fourth Floor they will not cite him! But, remember, he just elected Michael Gongora Commissioner - and Gongora only was saved from losing by Joe Centorino's last-minute statement that he was a resident under the Florida State Law! Surprise, Surprise! Joe Centorino is reportedly a 10 year friend of Hilliard as well as a former colleague of his political allies Kent Harrision, Robbins and David Dermer!”
My distrust of blogs is such that I deeply resent being referred to as a blogger; however, I do not trust a newspaper any farther than I can throw it. Therefore I asked Centorino for his comment on his alleged friendship with Hilliard and his collegiate association with the others.
“I became acquainted with all of the people you mention over the course of my many years at the State Attorney’s Office,” he replied. “Because of my position there, I became acquainted with thousands of people in the political sphere in Miami-Dade County. I always tried to keep my interactions with everyone both cordial and professional. I do not regard any of them as personal friends. I do not socialize with any of them. None of them would receive any special consideration from me or my agency. In regard to the specific matter that you raised with our agency, Murawski handling of it was not the result of any involvement on my part other than to refer the matter to him for his consideration.”
“I supposed as much. And may I suppose you would not care to personally rank or rate them on credibility? Seriously, don't you think my position on attempting to get oaths or affirmations all around has some merit, as least more than the compurgation test of yore not to mention trial by ordeal?”
“Of course I appreciate your concern over something that you deem questionable behavior in the realm of public service. While I generally do not publicly comment on anyone’s credibility, you may be assured that I maintain a mental ranking on many persons with whom I interact. I learned long ago that not every political misstep or doubtful ethical judgement in government is susceptible of a law enforcement or other regulatory response. In the end it is the attentiveness of the public and the media that must bring a sense of proportion and balance to politics.”