Recall proponents say Miami city attorney went too far in protecting Joe Carollo
Newly released internal city emails show Miami City Attorney Victoria Méndez invested time and staff in researching laws governing the recall process around the same time an effort began to remove Miami Commissioner Joe Carollo from office. The emails suggest that public servants paid by taxpayers sought to interpret state laws in a way that would favor Carollo, according to the recall campaign that is suing the city.
Attorneys representing the political committee behind the recall, Take Back Our City, suggested Méndez and her staff took legal positions that favored Carollo and ignored relevant case law, leading the city to reject more than 1,900 recall petitions submitted on March 2. The city’s refusal to forward the signatures to the Miami-Dade County elections department, which must verify them, prompted the lawsuit.
The attorneys representing the recall committee, J.C. Planas and David Winker, argue that Méndez and her staff’s research represent an improper expenditure of public resources to defend Carollo against a recall and ignore the will of those who signed the petitions.
“The City Attorney’s efforts are not only an attempt to silence the voices of the voters that signed the recall petitions but a betrayal of the very people she swore to represent, the residents of the City of Miami,” Planas and Winker wrote in a filing submitted Monday evening, in preparation for a court hearing on Tuesday.
“I was shocked and appalled by what I read,” Planas told the Miami Herald Editorial Board Monday afternoon. “It showed a pattern of abuse of her position. The city attorney’s office has become Joe Carollo’s law firm.” Asked to respond Monday evening, Méndez said only: “We look forward to addressing the [case] in court.”
Planas and Winker represent the group, which has received financial backing from businessman and former Miami city manager Joe Arriola. The lawyers are accusing Méndez and her staff of coordinating an effort to protect Carollo from a recall, which they argue amounts to illegal interference with a recall election.
“The City’s very response to this legal action, as well as their entire handling of this matter, is unlawful and likely criminal and should be subject to a law enforcement investigation,” reads the legal filing.
Planas and Winker filed suit against the city March 2 after the city refused to accept more than 1,900 signatures collected in February during an initial round of petitions. The committee needed 1,577 of those signatures to be certified by the Miami-Dade County elections department as currently registered voters in Carollo’s district in order for the group to continue with a second round of petitions that would include a statement of defense from Carollo.
The recall group submitted the petitions electronically Saturday night, Feb. 29, and turned in the actual petitions on Monday, March 2. The city attorney argued that the deadline was Feb. 29, and that the city had no authority to accept digital petitions or to extend the deadline to the first business day after the weekend.
The emails, attached to the court filing submitted Monday and first reported by blogger Elaine de Valle, show that in the earliest days of the campaign to gather signatures for the recall of Carollo, Méndez and a group of city attorneys developed what they called a “cheat sheet” to address a number of legal questions related to the recall campaign, including the deadline for submitting the petitions.
The records show an internal disagreement between two municipal attorneys, Kerri McNulty and George Wysong, over the deadline for submitting the recall petitions. On the evening of Jan. 29, the night before the recall committee even registered with the city, McNulty offered an analysis that found if the deadline were to fall on a weekend or legal holiday, the deadline must be extended to the end of the next business day. This analysis largely matches the recall committee’s position.
Later that evening, Méndez responded that she wanted to talk about the time frame for the petition.
“Could we discuss computation of time tomorrow. Thx,” Méndez wrote to McNulty.
The next day, Wysong provided a different interpretation, saying a “strict reading” of the state statute was in order. On the basis that the first signature was collected on Jan. 30 — an assertion that the recall committee disputes — Wysong wrote the committee would have had to submit its signatures on Friday, Feb. 28, because the true deadline was a Saturday, and the city clerk’s office is not typically open on Saturday.
Méndez later wrote that she agreed with Wysong. Four days later, McNulty wrote in a separate email that she agreed, and amended the “cheat sheet” with Wysong’s reading of the law.
Ironically, McNulty is the lead attorney representing the city in the lawsuit, meaning she is expected to argue against a legal interpretation that she privately wrote on a city document a little more than a month ago.
On Feb. 6, deputy city attorney John Greco shared research related to a case in Miami Beach in which a resident sued the city to compel officials to turn over petitions to the county elections department, mirroring the current situation in which the recall committee is suing to force Miami city officials to submit the signatures to the county.
Planas and Winker wrote that members of the city’s legal staff should have known a recall is an electoral matter, and therefore, they should have stayed out of issues related to the recall.
“They ignored the law and did it anyway,” the attorneys wrote. “They knew they were improperly computing the time for the filing of the petitions and even researched what the remedy would be if they failed to properly turn in the petitions to the Supervisor of Elections.”
In response to the recall committee’s lawsuit, the city’s attorneys argued in a filing that the committee’s submission of the petitions was “untimely” because in the city’s view, the petitions were turned in late.
“This is so because the recall petition is facially untimely,” reads the city’s response. “There is simply nothing in the plain language of the statute or under the existing case law that would dictate that the Recall Committee has a right to have a facially untimely recall petition forwarded to the county for verification of signatures.”
In two documents filed in court Monday by Carollo’s personal attorney, Benedict Kuehne states Carollo is an “interested party/defendant and intervenor” in the case, and he echoed the city’s arguments regarding the deadline for submitting the petitions. He added that the committee violated state law in scanning the petitions to submit them electronically on Feb. 29, and because Planas filed the petitions instead of the chair of the recall committee, resident Robert Piper.
“The recall committee engaged in clear and obvious violations of the municipal recall statute,” Kuehne wrote. “These violations are readily apparent and preclude the City Clerk from furnishing the legally deficient petitions to the Miami-Dade County Supervisor of Elections as a matter of law.”
This story was originally published March 9, 2020 at 10:30 PM.
