In an opportune twist in The Related Group’s continuing lawsuit against Miami City Commissioner Marc Sarnoff, the city of Miami agreed last week to pay attorney fees incurred by Sarnoff’s hand-picked legal team.

 

The Related Group, headed by developer Jorge Perez, filed a lawsuit seeking $15,000 on Aug. 31 alleging that Sarnoff crafted and distributed a libelous memo. Ironically, the developer wants the court to declare that the allegedly defamatory memo is a public record, which will then make it — and any of its potentially harmful remarks — public.  

“When it is determined to use outside counsel, I personally select those [attorneys], based on their skills and knowledge of the subject matter,” City Attorney Jorge Fernandez said. “In this case, it was very easy for me to turn to Mr. Sarnoff and [ask his preference]. I had no problem adopting his suggestions as mine.”

Since a “conflict of interest” prevents City Attorney Jorge Fernandez from representing the commission in the public records suit, the city agreed to pay legal fees up to $275 per hour to Sarnoff’s attorneys, Alan Wachs and Jeffrey David Swartz. Wachs normally charges rates of $295 per hour; Swartz, a former county court Judge charges up to $500 per hour. Both said they would not charge Sarnoff additional fees beyond what the city pays for their services.

 

Wachs described the memo as “merely a one-page document” that Sarnoff, who also is an attorney, typed up at his Miami law office Sarnoff & Bayer after a conversation with another unnamed city official. The typewritten document is a “few paragraphs long” in the form of a “memo template at the top, from Marc to himself,” Wachs said.

 

According to Swartz, only three people — Sarnoff’s two attorneys and someone from the state attorney’s office — have seen the memo. “The document itself is not a public record, it was a memory aid,” he said. “A public record is designed to communicate with others.”

 

Wachs believes the lawsuit is designed to intimidate Sarnoff, whose district includes Coconut Grove, because he was one of two commissioners to vote against a Mercy Hospital rezoning request that legalized a tri-tower residential project known as Grove Bay. Wachs would not say if the controversial document had anything to do with an investigation into whether Commissioner Michelle Spence-Jones accepted money from The Related Group in exchange for her “yes” vote on the project in February.

“What I don’t understand, and what I’ve never understood, is why the Related Group — if they thought it contained defamatory statements — wants to make it public record,” Wachs said. “It’s kind of one of those ‘be careful what you wish for’ situations.”

Related Group attorney Alan Shubin wrote a letter to Sarnoff requesting the memo when he first learned about it, but Wachs said he responded, “‘If you want this document this badly you can subpoena it. We have no objection to that.’ The document is not subject to the public records law. The next day they sued us.”

Wachs cited a host of case law determining that personal notes are an exception to the public records law.

Shubin would not comment for this story.

The Related suit is the second case filed against Sarnoff in one month. On Aug. 8, former Commissioner Johnny Winton — who held Sarnoff’s District 2 seat until he was arrested in May 2006 for assaulting two police officers at the Miami International Airport — filed a suit against Sarnoff to get his seat (and pension) back. In it, Winton argues that he should be reinstated because he was not convicted of the charges that led Gov. Charlie Crist to suspend him.

 

(Due to a plea agreement, Winton was sentenced to probation for the misdemeanor charges of battery and intoxication instead of two felony counts of battery and battery on a police officer.)

 

Fernandez said he can’t represent Sarnoff in either the Related suit or Winton’s challenge due “to a conflict of interest.”

 

“Johnny Winton was a former client and because he is still subject to being sued for matters arising out of his functions as a former city commissioner, he could [again] be a potential client,” Fernandez wrote to city commissioners in a legal opinion provided at a Sept. 11 meeting.

 

Fernandez also said the Related suit conflicts with the city’s representation of well, itself. Five lawsuits have been filed involving the city since Grove Bay’s approval, including ones involving The Related Group, the Grove Isle Association and The Vizcayans, a nonprofit organization dedicated to the preservation of nearby Vizcaya.

 

The city is paying legal fees for Wachs and Swartz in both cases, but the total cost to the city remains unclear.

“In today’s legal world, $275 per hour is actually kind of cheap,” Swartz said.

The city will not reimburse Sarnoff’s legal fees if the court determines that he acted outside of his capacity as commissioner.

According to Florida public records law, the city will also have to pay attorneys’ fees for The Related Group if Sarnoff loses the case. Also, if a court finds that Sarnoff knowingly violated the legal provisions requiring him to turn over public records, he could be suspended, removed from office, charged with a misdemeanor and fined $500.

A judge was supposed to assign a court date on Wednesday, however that hearing was postponed because of an apparent scheduling conflict for Shubin. It could be scheduled in as early as two weeks.

Wachs said he plans to ask a Miami-Dade County judge to review the document in private to determine whether the memo is, indeed, a public record.

“It’s almost a trap,” Wachs said of the suit. “I don’t think the document is defamatory, by definition. It says some not-nice things, but all he was doing was noting what was said in a conversation. They’re suing him claiming he turned the document over [to someone else]. But even if he turned it over it would not be defamatory.”

Comments? E-mail angie@miamisunpost.com.