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Miami misled investors over city’s financial health, SEC finds

Cash-strapped Miami is once again being threatened with civil charges for allegedly manipulating its books to deceive bond investors — a fraudulent practice that one former city leader blamed on a “culture of incompetence’’ at City Hall.

“Why is anyone surprised?” former City Manager Joe Arriola said Tuesday, referring to a new civil enforcement action from the U.S. Securities and Exchange Commission. “You can’t keep hiring idiots and think that you are going to get any kinds of results.”Former City Manager Merrett Stierheim said city commissioners have repeatedly lacked the “intestinal fortitude” to raise taxes and get tough with unions, resorting instead to manipulating the numbers.

“I’m not surprised at all that we’re going around this loop again,” Stierheim said. “Historically, there has been great reluctance on the part of the commission to forthrightly deal with financial problems.”

This is the second time in a dozen years Miami has run afoul of the SEC, making it the only city in the United States that can claim such a dubious distinction.

Late Monday, the SEC sent Miami a letter alleging the city had misrepresented its financial situation to investors before issuing bonds. The letter did not state which bond issues are targeted, but people familiar with the investigation told The Miami Herald the sales occurred between 2007 and 2009. The agency said it may file a lawsuit seeking civil fines or a cease-and-desist order against the city.

The stinging communication was the result of a 32-month investigation that began in 2009, when The Miami Herald found that city financial managers had moved $26.4 million from capital-project coffers into the general fund. The SEC contends that the move misled investors by giving the appearance of a balanced budget immediately before bond issues needed to finance improvements to city streets and sidewalks.

Also caught in the SEC’s headlights: former city budget director Michael Boudreaux, who received the same letter Tuesday, his attorney said. It was unclear if any other city officials have also been targeted. SEC Regional Director Eric Bustillo declined to comment.

City officials vowed to fight the accusations. Miami Mayor Tomás Regalado said the city’s lawyers are preparing a response letter arguing that charges are not warranted. He did not elaborate.

Regalado, who was a city commissioner when the budget and the bond issues facing scrutiny were approved, said his administration has hired a new budget director and chief financial officer in a bid to improve the city’s financial controls.

Manny Diaz, the mayor at the time, did not return calls. Neither did former City Manager Pete Hernandez, former chief financial officer Larry Spring nor former finance director Diana Gomez, who along with Boudreaux were responsible for signing off on the city’s financial documents.

Miami now owns a title that city leaders might rather forget.

“I’m not aware of municipality that has been down this road with the SEC twice,” said David Chase, an attorney who represents clients against SEC charges, and who was the lead investigator for the SEC when the city was last charged by the agency in 2001.

A third round of sanctions could be on the way. The SEC is also investigating city-issued bonds used to finance the Marlins Ballpark. Investigators want to know if investors were misled, and if the elected officials who championed the project were improperly influenced.

“The city is up to bat for the third strike, and ironically, it is about the Marlins Ballpark,” said Thomas Tew, who defended the city in the last round of SEC proceedings. “You would ask, ‘When are they going to get religion here?’ ”

As for Monday’s letter from the SEC, securities investigators are believed to have examined six bond sales, three in 2007 totaling $233 million, and three more in 2009 valued at $153.9 million. They also looked at two restricted pots of money — a gas tax and impact fees — that the city transferred into the general fund.

The city auditor at the time, Victor Igwe, flagged the questionable budget transfers in a pair of audits, calling them “illegal.’’ Commissioners allowed his employment contract to expire in June 2011. He later filed a whistleblower lawsuit alleging he lost his job because he was cooperating with the SEC.

The SEC combed through thousands of budget documents, memos and emails. Miami shelled out more than $1.4 million defending itself.

Miami and Boudreaux have until Aug. 6 to make their cases to the agency. Then, both sides will either agree on a settlement or the SEC staff will recommend charges to the five-member SEC board.

“The odds are, you’re going to be charged,” Chase said.

Chase said he would be surprised if the SEC fines Miami because taxpayers would have to foot the bill. As for a cease-and-desist order, it would be akin to a slap on the wrist, he said.

“There’s only so much you can do to a city,” he said. “You have to go after individuals.”

That seems to be the latest trend. In San Diego, four top administrators blamed for shady bond deals settled with federal authorities in 2010 by agreeing to pay $80,000 in fines. Though the group admitted no wrongdoing, it agreed bond investors were misled by some financial moves.

Boudreaux was the budget director responsible for the two transfers from the capital accounts to general-fund coffers, totaling $26.4 million, that have gotten Miami into trouble. He was fired in March 2010 by then-City Manager Carlos Migoya.

Boudreaux has since filed a whistleblower lawsuit alleging he was ousted for refusing to mislead SEC investigators.

“Mike thinks he’s just a scapegoat for a city and for a system,” said his attorney, Michael Pizzi. “Mike believes he’s a pawn. He’s being blamed for decisions made by Manny Diaz and the former administration and it’s just incredibly unfair.”

The latest securities allegations are strikingly similar to the last time the SEC looked at the city’s books. An SEC administrative judge ultimately ruled that the city had misled investors in 1995 by defrauding bondholders and failing to disclose the depth of the city’s financial woes.

In 2001, the judge found that Miami created the appearance of a balanced budget by using money from separate accounts to fill gaps in the general fund. The SEC found that city administrators borrowed money from hundreds of capital projects accounts over a six-year period, and that the moves were never properly disclosed to investors.

Back then, the city used the bogus numbers to support the sale of $116.5 million worth of bonds, including one to help cover pension costs.

In the end, the judge issued a cease-and-desist order forbidding the city from repeating such practices.

Miami later passed a “financial integrity’’ ordinance, mandating that the city keep approximately 10 percent of its total budget — or about $85 million currently — in reserves. If the city dips below that number, the administration is supposed to come up with a two-year plan to replenish the account. It’s been almost five years since the city held that much in reserve, yet no plan has ever been put in place.

Stierheim said findings of fraud involving taxpayer money “shake public confidence.”

But Commission Vice Chairman Marc Sarnoff insists the city’s financial culture has changed since the bond issues facing scrutiny.

“A new CFO and financial team have been put in place,” he said. “It is a conservative team and a conservative commission. I would have a lot of confidence in this city.”