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Ethics Question Page 1 of I Jim Roberts From: To: Ben Dover <jtylaw@hotmail.com> <coat@mail.state.fl,us>; <hmorgan@morganandhendrick.com>; <J LRobert@mail.state.fl.us>; < KCabanas@morganandhendrick,com>; <kwlawyer@bellsouth.net>; < murielhendrick@hotmail.com>; < PSinghKW@Earthlink.net>; <vera@keysdigita!.com> Monday, February 18, 200210:39 AM DavisHatchettLetter. doc Fwd: Response to ethics challenge Sent: Attach: Subject: I am sending the attached letter to two of the State's leading authorities on legal ethics. Their response will be my answer to the Key West Citizen's accusation. > Get your FREE download of MSN Explorer at http:!{~~.pJQI~I-ms.n,GQm. ~'d vvSv-~6~-SOE u~wp~ o~ s~~aqo~ I sawer dE~:vO ~o S~ qa~ CLERK OF THE CIRCUIT COURT MONROE COUNTY BRANCH OFFICE MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET KEY~LFLORIDA33O~ TEL. (305) 292-3550 FAX (305) 295-3663 BRANCH OFFICE PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 February 20,2002 Mayor Charles" Sonny" McCoy 530 Whitehead Street Key West FL 33040 Dear Mayor McCoy, Enclosed please find a memorandum to me from James T. Hendrick, County Attorney, dated February 15, 2002, and filed in this office on February 19, 2002, concerning his participation in the special meeting of the Board of County Commissioners on the February 12, 2002, in Marathon concerning Hawk's Cay. Mr. Hendrick is filing this memorandum pursuant to the provisions of Florida Statute 112.3143. I am including a copy of that section of the Florida Statutes for your information. A copy of this memorandum is being forwarded to you as required by the Statute. The memorandum will be included in the minutes of the meeting of February 12, 2002, and will be read into the record at the Board's next regular meeting in Marathon on March 20, 2002. Sincerely, ~~~ of the Circuit Court and ex-officio to the Board of County Commissioners cc: County Administrator County Attorney Attachments statutes-> View Statutes->200 l->ChO 112->Section 3143: Online Sunshine Page 1 of2 SOnline h. uns lne Wlll(omll Ses~ion (ommitlellS Le~isllllolS Illf~~:~:OllJEll.lllT:~~~~~~ll Search Statutes Constitution Laws of Florida Order View Statutes Select Year: 120~1Jtj <.......b......U..'.......'.J'.. - The 2001 Florida Statutes Title X Public Officers, Employees, And Records Chapter 112 Public Officers And Employees: General Provisions View Entire Chapter 112.3143 Voting conflicts.-- (1) As used in this section: (a) "Public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body. (b) "Relative" means any father, mother, son, daughter, husband, wife, brother, sister, father-in- law, mother-in-law, son-in-law, or daughter-in-law. (2) No state public officer is prohibited from voting in an official capacity on any matter. However, any state public officer voting in an official capacity upon any measure which would inure to the officer's special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which the officer is retained; or which the officer knows would inure to the special private gain or loss of a relative or business associate of the public officer shall, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. (3)(a) No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. (b) However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357, or an officer of an independent special tax district elected on a one-acre, one-vote basis, is not prohibited from voting, when voting in said capacity. (4) No appointed public officer shall participate in any matter which would inure to the officer's special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter. (a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum http://www.leg.state.fl.us/statutes/index. cfm? App _ mode= Di splay _ Statute& Search _ String=,... 2/20/2002 statutes->View Statutes->2001->ChOl12->Section 3143: Online Sunshine Page 2 of2 filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum. (b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum. (c) For purposes of this subsection, the term "participate" means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction. (5) Whenever a public officer or former public officer is being considered for appointment or reappointment to public office, the appointing bOdy shall consider the number and nature of the memoranda of conflict previously filed under this section by said officer. History,--s. 6, ch. 75-208; s. 2, ch. 84-318; s. 1, ch. 84-357; s. 2, ch. 86-148; s. 5, ch. 91-85; s. 3, ch. 94-277; s. 1408, ch. 95-147; s. 43, ch. 99-2. Welcome · Session · Committees · Legislators. Information Center. Statutes and Constitution · Lobbvist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright @ 2000-2001 State of Florida. Contact us. Privacv Statement http://www.1eg.state.fl.us/statutes/index.cfm?App _ mode=Display _ Statute&Search _ String=.... 2/20/2002 FILED FOR RECORD MEMORANDUM 2002 FES I 9 PM 3: 29 February 15,2002 to: Danny Kolhage, Clerk of County Commi~~kL(.JR~~~GE from: James T. Hendrick, County Attorney i10NROE COUNTY. FLA. As I declared on the record of the Special Meeting of the BOCC Tuesday evening, I have previously served as attorney for my friend Pritam Singh and several companies in which he is a principal. When I was appointed County Attorney, I had for many years represented real estate development companies headed by Pritam Singh. All of those companies' activities were confmed to the City of Key West, which exercises land use jurisdiction to the exclusion of Monroe County. Therefore, my representation of those entities raised no potential conflict of interest with my position as County Attorney, and for several years I represented those entities, whose activities are confmed to Key West. My only remaining client affiliated with Pritam Singh is Key West Golf Club Development, Inc., whose activities are limited to completing the residential development at the Key West Golf Course. An entity in which Mr. Singh is a principal, Village at Hawk's Cay, Inc., ("Village") has a contractual relationship with the owner of Hawk's Cay, a resort property governed by the terms of a previously-approved Development of Regional Impact ("DR!") order. The Hawk's Cay landowner (Hawk's Cay Investors, Ltd; or "HCI") recently applied for an amendment to the DR!, seeking approval to build hotel units and staff housing. I do not know the terms of the agreement between Village and HCI, but it is my understanding that Village would build and sell the additional hotel units authorized under the DR! amendment. The proposed DR! amendment required a public hearing before the Board of County Commissioners. Because that hearing was quasi-judicial in nature, and therefore subject to heightened scrutiny and review, I recused myself from the February 12 Public Hearing on the DR! amendment. At the commencement of the Hearing, I announced my recusal and declared my association with Mr. Singh. Although I have never represented either HCI or Village at Hawk's Cay, I felt it best that I not participate in these proceedings, due to possible perception that I would not be an impartial advisor to a board sitting in a quasi-judicial capacity. Memorandum, p.2 I have participated as County Attorney, and continue to do so, in other matters related to Hawk's Cay, including drafting of the opinion letter approved by Resolution of the BOCC at the February 12 Special Meeting, explanation of that opinion letter at that same Meeting, and revising and editing the draft contract, prepared by the County Attorney's Office, that was tabled by the BOCC at that Meeting. It is my understanding that Pritam Singh will have a minority ownership interest in a company being formed in anticipation of performing work under the above-referenced draft contract (which draft contract will require extensive revision). I expect to have continuing dialogue with DCA concerning Hawk's Cay. None of those matters will, to my knowledge, inure to the special private gain of any of my clients or to the parent organization or subsidiary of a corporate principal by whom my private law fIrm is retained. However, a local newspaper editorial today suggested that a conflict of interest arises between the performance of my job as a public officer and my association with Mr. Singh. Therefore, in an abundance of caution, I am fIling with you this written memorandum, as would be required were the provisions of Florida Statute Section 112.3143 (4) found applicable to the above-described circumstances. Respectfully su mitted, rlt BRANCH OFFICE MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 Commissioner Dixie Spehar 500 Whitehead Street Key West FL 33040 Dear Commissioner Spehar, CLERK OF THE CIRCUIT COURT MONROE COUNTY BRANCH OFFICE PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET KEY WEST, FLORIDA 33040 TEL. (305) 292-3550 FAX (305) 295-3663 February 20, 2002 Enclosed please find a memorandum to me from James T. Hendrick, County Attorney, dated February 15, 2002, and filed in this office on February 19, 2002, concerning his participation in the special meeting of the Board of County Commissioners on the February 12, 2002, in Marathon concerning Hawk's Cay. Mr. Hendrick is filing this memorandum pursuant to the provisions of Florida Statute 112.3143. I am including a copy of that section of the Florida Statutes for your information. A copy of this memorandum is being forwarded to you as required by the Statute. The memorandum will be included in the minutes of the meeting of February 12, 2002, and will be read into the record at the Board's next regular meeting in Marathon on March 20, 2002. cc: County Administrator County Attorney Attachments Sincerely, \ .~ Danny L. hage, Clerk of the Circuit Court and ex-officio to the Board of County Commissioners CLERK OF THE CIRCUIT COURT MONROE COUNTY BRANCH OFFICE MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET KEYWES~FLORIDA3~ TEL. (305) 292-3550 FAX (305) 295-3663 BRANCH OFFICE PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 February 20, 2002 Commissioner George Neugent 25 Ships Way Big Pine Key FL 33043 Dear Commissioner Neugent, Enclosed please find a memorandum to me from James T. Hendrick, County Attorney, dated February 15, 2002, and filed in this office on February 19, 2002, concerning his participation in the special meeting of the Board of County Commissioners on the February 12, 2002, in Marathon concerning Hawk's Cay. Mr. Hendrick is filing this memorandum pursuant to the provisions of Florida Statute 112.3143. I am including a copy of that section of the Florida Statutes for your information. A copy of this memorandum is being forwarded to you as required by the Statute. The memorandum will be included in the minutes of the meeting of February 12, 2002, and will be read into the record at the Board's next regular meeting in Marathon on March 20, 2002. Sincerely, Danny L. hage, Clerk of the Circuit Court and ex-officio to the Board of County Commissioners cc: County Administrator County Attorney Attachments CLERK OF THE CIRCUIT COURT MONROE COUNTY BRANCH OFFICE MARATHONS~COU~HOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET KEY WEST, FLORIDA 33040 TEL. (305) 292-3550 FAX (305) 295-3663 BRANCH OFFICE PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 February 20, 2002 Commissioner Nora Williams 490 63rd Street Marathon FL 33050 Dear Commissioner Williams, Enclosed please find a memorandum to me from James T. Hendrick, County Attorney, dated February 15, 2002, and filed in this office on February 19, 2002, concerning his participation in the special meeting of the Board of County Commissioners on the February 12, 2002, in Marathon concerning Hawk's Cay. Mr. Hendrick is filing this memorandum pursuant to the provisions of Florida Statute 112.3143. I am including a copy of that section of the Florida Statutes for your information. A copy of this memorandum is being forwarded to you as required by the Statute. The memorandum will be included in the minutes of the meeting of February 12, 2002, and will be read into the record at the Board's next regular meeting in Marathon on March 20, 2002. Sincerely, \ Danny L. hage, Clerk of the Circuit Court and ex-officio to the Board of County Commissioners cc: County Administrator County Attorney Attachments CLERK OF THE CIRCUIT COURT MONROE COUNTY BRANCH OFFICE MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 MONROE COUN1Y COURTHOUSE 500 WHITEHEAD STREET KEY WEST, FLORIDA 33040 TEL. (305) 292-3550 FAX (305) 295-3663 BRANCH OFFICE PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 February 20, 2002 Commissioner Murray Nelson The Dameron Building, Suite 2 99198 Overseas Highway Key Largo FL 33037 Dear Commissioner Nelson, Enclosed please find a memorandum to me from James T. Hendrick, County Attorney, dated February 15, 2002, and filed in this office on February 19, 2002, concerning his participation in the special meeting of the Board of County Commissioners on the February 12, 2002, in Marathon concerning Hawk's Cay. Mr. Hendrick is filing this memorandum pursuant to the provisions of Florida Statute 112.3143. I am including a copy of that section of the Florida Statutes for your information. A copy of this memorandum is being forwarded to you as required by the Statute. The memorandum will be included in the minutes of the meeting of February 12, 2002, and will be read into the record at the Board's next regular meeting in Marathon on March 20, 2002. Sincerely, Danny L. age, Clerk of the Circuit Court and ex-officio to the Board of County Commissioners cc: County Administrator County Attorney Attachments Karen K. Cabanas Robert Cintron James T. Hendrick Hugh J. Morgan Jedde V. Regante LAW OFFICES MORGAN & HENDRICK 317 Whitehead Street Key West, Florida 33040 W. Curry Harris (1907-1988) Hilary U. Albury (1920-1999) February 18,2002 Hon. Edward B. Davis and Hon. Joseph W. Hatchett, Akerman Senterfitt VIA F ACSlMILE and e-mail Dear Judge Davis and Justice Hatchett: I wish to retain your services to advise me on an issue of ethics and professional responsibility with respect to my position as County Attorney for Monroe County. For the past 61;2 years, I have served as County Attomey pursuant to a contract that allows me to maintain my private practice as a member of this firm. My County staff, including three attorneys, are all full-time County employees. When I was appointed County Attorney, I had for many years represented real estate development companies headed by Pritam Singh, the developer of Truman Annex. All of those companies' activities were confined to the City of Key West, which exercises land use jurisdiction to the exclusion of Monroe County. Therefore, my representation of those entities raised no potential conflict of interest with my position as County Attorney, and I have continued to represent those entities, whose activities are confined to Key West. In addition to the attorney-client relationship, Mr. Singh is well known to be my friend. In 1995 or 1996, a new entity in which Mr. Singh became a principal, Village at Hawk's Cay, Inc. ("Village"), entered into a contract with Hawk's Cay Investors, Ltd ("HC!"), the owner of Hawk' s Cay, a resort property governed by the terms of a previously- approved Development of Regional Impact ("DRI") order. A substantial part of the Hawk's Cay resort had been completed, but hundreds ofDRI--authorized units remained unbuilt. I do not know the terms of the contract between Village and HCI, but I have been told that Village obtained the right to build and sell some of the remaining unbuilt Hawk's Cay units. In 1996, HCI applied for an amendment to the DRI, seeking to reduce and reconfigure the remaining unbuilt Hawk's Cay units. That proposed DRI amendment required a public hearing before the Board of County Commissioners ("BOCC"). Because that hearing was quasi-judicial in nature, and therefore subject to heightened scrutiny and review, I recused myself from the public hearing before the BOCC, based on my association with Pritam Singh. Although I have never represented either HCl or Village, I felt it best that I not participate in a quasi-judicial proceeding where my P.O. Box 1117, KEY WeST, FL 33041 .. TELEPHONE 305296-5676 * FACSIMILE 305296-4331 E-MAIL ADDRESS:JHENDRICK@MORGANANDHENDRICK.COM E-d to-to-5to--2S2-50E U~wp8 o~ s~~aqo~ I sawer dto-2:to-O 20 52 qa.:l impartiality might be questioned by a party opposing the amendment. The 1996 amendment was approved, the reconfigured units were built, and the project was highly successful. Last year, Monroe County (which is under stringent growth-management restrictions that limit the number of new housing units that may be approved) began to look for sources of previously-approved units to be used for affordable housing. One potential source was the unbuilt 175 units authorized under the original Hawk's Cay DRI, i.e., units that had been removed from the Hawk's Cay site plan by the 1996 amendment. The impacts of those DRI-approved units had been accounted for in the County's Rate of Growth Ordinance, and they were therefore exempt from the restrictions otherwise applicable to new housing units. The BOCC directed County staff to work with the developer and the State Department of Community Affairs ("DCA") on a plan to recapture those units for use as affordable housing. Ultimately, HCI proposed a plan whereby 18 units would be built as affordable staff housing on Hawk's Cay, 28 hotel units would be added to the resort, and an allocation of 128 units would be transferred from Hawk's Cay to the County, to be built as affordable housing wherever the need was greatest. HCI submitted a DRI amendment application to the County, based on that proposal. In the course of discussions with the Secretary of DCA and his staff, DCA asked that the COlmty's legal staff render an opinion supporting the County's contention that the unbuilt units authorized under the original DRl approval are exempt from the County's Rate of Growth Ordinance. At the direction of the County's Growth Management Director, that legal opinion was written by County Land Use Counsel (Karen Cabanas, an associate of Morgan & Hendrick) and was later revised by me in response to a contrary opinion written by counsel for an environmental advocacy group. 1 Jltimately, the County was unable to surmount objections to the proposed relocation, o1'f- site, of the 126 affordable housing units. DCA, responding to concerns raised by environmental advocacy groups, wouldn't approve that feature of the proposed DRT amendment. However, the BOCC's land use liaison, Commissioner Nora Williams, suggested an alternative: that HCI agree to extend and upgrade its existing sewage treatment plant to treat sewage from nearby communities that are now dependent on cesspits and other unacceptable sewage systems. The problem of untreated sewage is at the top of the County's growth management issues, so Commissioner Williams' proposal provided an obvious substantial public benefit. She enlisted County Growth Management staff to revise the conditions of the proposed DRI amendment, and eoordinated the drafting by the County Attorney's Office of a proposed contract whereby HCl's sewage plant would be expanded, using funds from a variety of public grants and revenues from a Municipal Service Benefit Unit. That draft contract, prepared by Chief Assistant County Attorney Rob Wolfe with my assistance and editing, underwent numerous revisions based P.O. Box 1117, KEY WEST, FL 33041 * TELEPHONE 305296-5676 * FACSIMILE 305 296-4331 E-MAIL ADDRESS:JHENDRICK@MORGANANDHENDRICK.COM t..d t.t.9t.-~S~-90E: u~wp~ o~ s+~aqo~ l sawer dt.~:t.O ~O 92 qa.:l on input from He!' s attorney, the County's bond counsel (Nabors & Giblin), and the County Clerk, among others. When the DRl amendment crone before the BOCC, I declared my association with Pritam Singh and accordingly recused myself from the quasi-judicial hearing on the DR! amendment. At the public hearings on the DR! amcndment, both the BOCC and the Planning Commission were advised by an Assistant County Attorney unconnected with my private office. After the BOCC closed the public hearing, debated the issue and approved the DR! amendment, the BOCC recessed. On reconvening, the BOCC took up a proposed Resolution affirming the County's legal opinion (copy enclosed), as it had been requested to do by DCA. During the discussion on that Resolution, I responded (as author of the opinion) to a question raised by a member of the BOCC, and the BOCC heard from a legal expert on DRls. The BOCC then voted unanimously to adopt the Resolution affirming the County's legal opinion. That Resolution has since been forwarded to DCA, pursuant to DCA's request. The draft contract with HCI for expansion of its sewage treatment plant was tabled, and will require extensive revision. Three days later, the enclosed editorial was published in the Key West Citizen, criticizing my limited involvement in the Hawk's Cay matter. The editorial was rife with error and innuendo that is unfortunately typical of what passes for public dialogue in the Keys. I responded with a detailed letter to the editor (enclosed). Commissioner Williams also wrote in response (copy enclosed). Ncither letter has been published, but a member of the Citizen's editorial board, former County Commissioner Jack London, wrote an editorial published in Sunday's Citizen that put the issue in perspective (describing "the recent misunderstanding over the Duck Key issue" as one of the Keys' "tempests in teapots over trivial affairs".) I don't take lightly accusations of impropriety in my public office. I believe that I have done no less than what is required to conform to the Code of Professional Responsibility and to preserve the integrity of the quasHudicial public hearings on the 1996 and 2002 DRl amendments. The Citizen editor demands compliance with a standard that I do not believe exists, i.e., Notwithstanding the absence of a past or present attorney-client relationship between an applicant and a local government attorney, the attorney is disqualified from acting in his official capacity with respect to the applieation, if ( a) a friend whom he has represented in completely unrelated matters, or (b) an entity of which that friend is a principal, would derive an incidental benefit from approval of the application. In a community as small as the Keys, a rule that would disqualify a local government official from acting on any matter involving a friend would make it impossible for government to function. I find it instructive that State law limits the circumstances under which government P.O. Box 1117, KEY WEST, FL 33041 * TELEPHONE 305296-5676 * FACSIMILE 305296-4331 E-MAIL ADDRESS:JHENDRICK@MORGANANDHENDRICK.COM S'd VVSV-GSG-SOE u~wp~ OJ s~~aqo~ I sawer dvG=VO GO SG qa.:l offieials may abstain. F.S. Section 286.012 allows abstention from voting only when there is or appears to be a possible conflict of interest under SectiuIls 112.311, .313, or .3143, Florida Statutes. I have read those provisions, including those made specifically applicable to local government attorneys, and find nothing that would preclude my acting on behalf of the County under these circumstanees. Section 112.313 (7)(a) prohibits public offieers holding a contractual relationship "with any business entity. .. .which is subject to thc rcgulation of, or is doing business with" their agencies. Neither I nor my firm has any professional or contractual relationship with HCI, Village at Hawk's Cay, or any other business entity involved in the Hawk's Cay project that is either subject to the County's regulation or is doing business with the County. As an appointed public officer, my duty under F.S. Section 112.3143 is to disclose to the County Commission any interest that I know would inure to the "special private gain" of a client or business associate. Even though none of the Hawk's Cay entities is a client of my office, in an abundance of caution I disclosed on the record of the proceedings my association with Pritam Singh, and have filed a written memorandum with the Clerk of the County Commission detailing that association. Those actions, and my reeusal from the quasi-judicial DRI deliberations, were taken to insure my compliance with the laws and ethical standards governing public officials. I hold in highest regard your opinion on matters involving legal ethics and the professional standards governing the conduct of attorneys. Please advise me of your opinion on the ethics issue raised in this letter, and I will be governed accordingly. Sincerely, James T. Hendrick P.O. Box 1117, KEY WEST, FL 33041 * TELEPHONE 305296-5676 * FACSIMILE 305296-4331 E-MAil ADDRESS:JHENDRICK@MORGANANDHENDRICK.COM s'd vvSv-262-S0E u~wp~ o~ s~~aqo~ I sawer dS2:vO 20 S2 qa.::l SALOMON, KANNER, DAMIAN & RODRIGUEZ, P.A. ATTORNEYS AT LAW 2550 BRICKELL BAYVIEW CENTRE BO 5.W. 8TH STREET MIAMI, FLORIDA 33130 VINCENT E. DAMIAN, .JR. TELEPHONE (305) 379-1681 TELECOPY (305)374-1719 Apri110, 2002 } 't I' S' ~~4 GAy. VIA FEDERAL EXPRESS o'Jpartment of Community Mfairs Community Property Administrator Bureau of State Planning 2555 Shumart Oak Blvd. Tallahassee, FL 32399-2100 Attn: Ray Eubanks Re: Hawks Cay Expansion Modification of the DRI Ladies and Gentlemen: This office represents CCDK Corp. (Concerned Citizens of Duck Key) and the individual residents thereof. They have requested this office to assist them in voicing their objection to the Hawks Cay Resort Development Amendment to their DR!. The'concern of the residents stems primarily from the expansion of the resort in size and scope. The residents are most concerned that the enormous increase in the number of hotel and residential habitations (hotel rooms and/ or bedrooms in the townhouses) bring an unanticipated number of inhabitants both semi-permanent (up to 11 months a year) and transient, together with the resulting burden upon all of the local facilities, the traffic, U.S. 1, the water, the effluent, and the consequential results. the consequential results are a visually unattractive development now consisting of greater mass, and greater ground coverage. While the amendment to the DR! cites that there are on site facilities such as restaurant and stores, there will nevertheless be consequent overspill into the existing ~ . facility to the surrounding area, again burdening the infrastructure. The residents concerns do not necessarily fit into the administrative, envirQ!'Uhental ,'::i~B'" or legal categories that we put them into. However, they are, in fact, the ve{y':'>s~dards 'i::,'f}. . \ that are raised by Chapter 380 of the Florida Statutes and Chapter 28 of th~;Flo~~g.a\ \ . (;~~: :"'l> ' ..\,; \ . .. ."u 0) ..\.1'6 .p 'Y> ~\) April 10, 2002 Page 2 Administrative Code. I will point out the specific references to the statute. I will set forth here the specific impacts that the proposed amendments to the DRI will or may have, showing that it is not an unsubstantial change, but a substantial one requiring a far greater ,showing by the applicant. We will also show that the process by which the Monroe County Commission approved the amendment to the DR! including deliberately ignoring the number of hotel rooms and bathrooms that are being added, deliberately ignoring the impact upon traffic, ROGO, and hurricane evacuation, brought about by a legal opinion that was clearly conflicted and should not have been considered by-the County Commission, was fatally flawed. I am also attaching hereto an analysis by Sheryl Bower, a respected Land Planner formerly with the Land Planning Department of Islamorada, Monroe County. Ms. Bower points out that, in fact, the Monroe County Code specifically defines a hotel dwelling unit such that one must consider the number of bedrooms and baths in each in determining the number of units in the DR! (Le. one bedroom/bath equals one hotel unit). Examined in that manner, this clearly is a substantial change in the number of units and it should have been denied by the Monroe County Commission based on the information brought before it. This is clearly a substantial deviation and, therefore, a substantial modification to the number of units pursuant to Florida Statutes Section 380.06(19) 9. It is also brings into question a deviation and, therefore, substantial change with respect to Sub-Section 15 thereof, with respect to, external vehicle trips generated, which was not addressed because of the Commission's determination that the number of units had, in fact, not exceeded the level of service (LOS) as set forth in the Statute and, therefore, was not a substantial deviation pursuant to Sub-Part 9 as set forth above and, therefor, is not taken into consideration. The application did contain an analysis by a traffic engineer, but the analysis ignored the Monroe County Code which requires that each hotel rooms/bedrooms be counted as a hotel unit thereby substantially increasing the number of hotel units and, therefore, increasing the external traffic. Please refer to the letter of Transport Analyst Professionals, Inc. dated September 12, 2001 which was submitted with the application. This is the traffic analysis. On page 1, they refer to the addition of 46 total units to the 1996 approved Plan. These are the on- site quarters and the 36 new guest units. That is not the actual number of additional units SALOMON, KANNER, DAMIAN & RODRIGUEZ, P.A. Apri110, 2002 Page 3 which are actually over 100. Therefore, the letter and the analysis should be ignored, since it is based upon faulty assumptions. In fact, extrapolating from the letter, it is clear that the external trips generated would violate the LOS requirements. This Council, and the Department of Community Affairs must consider, that pursuant to Florida Statutes Section 380.0552, the Florida Keys area, and this area, is designated asan area of Critical State Concern. As such, at Section 380.0552(7), Principles for guiding development, the Statute provides that 1/ for purposes of reviewing consistency of the adopted plan or any amendment to that plan with the principles for guiding de'\"elopment and any amendment to the principles, the principles shall be construed as a whole and no specific provisions shall be construed or applied in isolation from the other provision." What this means is that we are not be bound to each item or any individual item, but we must look at the totality of it. The fact that the amendment to the DR! is a substantial deviation with respect to, at least, two of the items, compels us to look at the totality and what we see is an enormous development getting larger in a small area. Therefore, the Department can and should take into account that the increased units now reduce open space, increase land coverage, decrease the views of the environment, the ocean and generally 1/ de-beautify" Duck Key. These considerations are part of a larger picture which we are allowed to look at under the area of critical concern. Further, this has gone beyond a simple hotel and hotel suites. I am attaching a copy of the Purchase Agreement for the purchase of the townhouses at this development. This is the purchase of a home not a hotel suite. These townhouses will be used both permanently and transient and, therefore, will impact the area far greater than hotel suites alone. With respect to the Monroe County Commission relying upon advice from a conflicted party and its result, I have attached hereto the memorandum of the County Attorney which itself was made part of a Resolution of the County Commissioners, finding that the development and the number of units are exempt from ROGO requirements of Monroe County. The logical extension of that would be the number of units planned in 1986, notwithstanding the amendment in 1996, are also exempt. The Monroe County Commission clearly relied upon the opinion of its County Attorney. The Commission had before it a conflicting opinion, that of Richard Grosso, Executive Director and General Counsel of the Environmental and Land Use Law Center, which states quite contrary that the additional units are not ROGO exempt and consequently the increase in the units themselves are not exempt (attached hereto). SALOMON, KANNER, DAMIAN & RODRIGUEZ, P.A. April 10, 2002 Page 4 Which opinion, that of Mr. Hendrick or that of Mr. Grosso is correct is a legal matter. I would point to th~ analysis by Ms. Bower which clearly shows that Monroe County itself considers that the number of units is not identical to number of hotel rooms or for that matter townhouses, and that we must count each of the individual bedroom and bath combinations. These units not being exempt now far exceed even the original development, we have an extremely substantial deviation from the original DR! which must be examined. So which opinion, that of the Environmental and Land Use Law Center or that of the County Attorney, Mr. Hendrick or the opinion of Ms. Bower should the Monroe County Commission have considered and should the South Florida Planning Council and the Department of Community Affairs consider. The opinion of Mr. Hendrick should be stricken and should not have been considered by the Monroe County Commission nor should it be considered by the South Florida Planning Council nor the Department of Community Affairs. Mr. Hendrick at the hearing on February 12th at which this modification to the DR! was considered, specifically recused himself stating that he had a close association with Mr. Singh (a principal of the applicant), stating that Mr. Singh was a personal friend and a private client. Mr. Hendrick indicated he would not be representing the County. However, Mr. Hendrick's letter opinion had ~en previously submitted to the County when ~ conflict existed. The Commission not only relied upon the letter, but it adopted it in a Resolution on the same day it passed the Resolution approving the amendment to the DR!. A copy of the Resolution adopting Mr. Hendrick's opinion is attached.. I also enclose a copy of pages 5 and 6 of the transcript of the Proceedings of the Special Meeting of the Monroe County Board of Commissioners of February 12, 2002 at which these events occurred. I attach pages 5 and 6 in which Mr. Hendrick recuses himself and in which Mr.. Singh introduces himself. Thereafter, notwithstanding that Mr. Hendrick has recused himself and indicates that he would take no part in the proceedings, Mr. Hendrick determined that the Commission could not do without his advice and, therefore, injected himself into the proceedings during the Commissioners' discussions. Mr. Hendrick specifically advised the Commission and the Commissioners as to what they were considering and what the ramifications were. I enclose transcript pages 111 through the end, page 141 showing Mr. Hendrick's direct involvement. We will never know what the Commission may have determined regarding the exempt status of these additional units or their a vested status under the original DR! had they not had Mr. Hendrick's opinion and Mr. Hendrick's active participation in the proceedings. We do know that the County Attorney engaged in a clear conflict of interest SALOMON, KANNER, DAMIAN & RODRIGUEZ, P.A. April 10, 2002 Page 5 and was allowed to do so by the presiding officer of Monroe County Commission. This taints the whole proceedings, particularly as to the determination that the units are somehow ROGO exempt and the number of units in the DR! is somehow vested as at 1986. Based on this alone, the recommendation should be to return this total proceeding to the Monroe County Commission for further proceedings without the tainted matters. You will note that the application and all the attachments to it rely throughout upon these units being "vested" and "exempt"; vested as to their right to build the number of units because the number of units were contained in the 1986 DR!. They ignore the fact that the DR! was amended in 1996 and the number "units" was reduced in exchange for its extending the period of time in which the development was to be completed to 2004 and in exchange for mcreasing the number of bedrooms and bathrooms. Now, it is their position that the 1996 modification which allowed them the extension of time and allowed them additional bedrooms and bathrooms in exchange for a decrease of number of units is not binding and they have the right to go back to the number of units in 1986 DR!, but keep the concessions that were given to them in 1996. Throughout the history of this project and through all changes, the applicant has emphasized the reduction in the number of units from 444 to 269 that occurred in 1996. . For them to now say that their prior reliance upo;n the reduction in order to get the amendments, should be disregarded is a flagrant attempt at a "triple or quadruple dip". See for example Attachment E Revised December 16, 1997 which accompanied a prior application to amend the Hawks Cay community impact statement. This is only an example of what has occurred and has occurred consistently. The reduction in the units was and is mgjor. The increase in the units is major. A copy of the referenced document is attached. We urge that the applicant is bound by the 1996 amendment and the reduction of the number units. We urge you not to be dissuaded by the-opinion of Mr. Hendrick whose opinion permeates the proceedings and comes with a taint that is overwhelming. Also, note that the 1996 Resolution of the Monroe County Board of Commissioners in adopting the modification to the DR! clearly said that these modifications amended the original DR! and clarified the same by stating that all other parts of the 1986 DR! remain unaffected. The intent clearly was that the 1986 DR! was amended, it is no longer vested and we are now operating with a modified DR! as modified in 1996. The residents are not unmindful of the need for a sewer treatment plant in and SALOMON, KANNER, DAMIAN & RODRIGUEZ, P.A. April 10, 2002 Page 6 around Duck Key. However, DR! modifications are not and can not be for sale. The fact that the Developet: of Hawks Cay is willing, in fact wants, to provide sewer service through the existing facility should not have persuaded the Monroe County Commission nor this body to approve their request for the modification to the DR!. A sewer treatment facility will be provided and should be provided and it should be worked out separately if necessary. It is requested that the Department of Community Mfairs determine that the approval of the modification of the DR! by the Monroe County Commission should be reversed and the Department should take the appropriate action to appeal the same. If you have any questions, I would be pleased to discuss them with you together with my consultant Ms. Bower. Yours very truly, \ VEDjley Enclosures cc: Rebecca Jetton, DCA Ken Metcalf Mike McDaniels Board of County Commissioners cj 0 Oerk Tom Davis, CCDK Corp. SALOMON, KANNER, DAMIAN & RODRIGUEZ, P.A.