We recently wrote about how the City of South Miami maneuvered to avoid issuing a Request for Proposal (RFP) to fill the job of city attorney. It’s not that Thomas Pepe, the seated city attorney, was leaving. Rather, his contract was about to expire.
Or maybe I should say his “elusive” contract – because this was not an easy document to get your hands on. Coming in at just five pages, it took city administration a while to produce Mr. Pepe’s contract following our public record request.
What we got was eye-opening.
First executed on April 16, 2014, the South Miami City Attorney contract pays Pepe a base fee of $204,000 a year, paid in monthly installments of $17,000. Plus, Pepe gets paid an additional $50,000 for legal services related to labor matters. Both sums were scheduled to go up, just six months later, by 5 percent on October 1, 2014, to $214,000 for legal services and $52,500 for labor.
Pepe’s contract clearly states that he is an independent contractor and that the agreement “shall not be deemed to create the relationship of employer employee between the City and City Attorney.”
To get the money, Pepe has to do certain things. He has to attend City Commission meetings, meet with the City Manager, the Mayor and Commissioners, and department heads. He has to prepare ordinances, resolutions, contracts, and legal opinions. He must represent the City in legal proceedings.
Even though Pepe gets $52,500 a year for labor matters, his contract doesn’t require him to give any advice on pensions. That seems odd to us, because pensions are directly related to the labor of city employees. If a pension matter arises, Pepe gets to hire a pension lawyer. The cost for that is paid by the city, not taken from the pot of cash set aside for Pepe.
If the city decides to end the contract with Pepe, it still has to pay him for six months, or $107,000, just to make him go away. This seems like an overreach for Pepe and should not have been allowed by the lawyer at the time that reviewed the contract for the city.
The contract was signed by Thomas Pepe, as an attorney, and by City Manager Steven Alexander. Then oddly, Thomas Pepe, as the City Attorney, signed it again under a declaration that said: “Read and Approved as to Form, Language, Legality, and Execution Thereof.”
That last part should make anyone who reads it take pause. Thomas Pepe negotiated a contract with the city as a private attorney and then certified that it was proper as to its legality in his role as city attorney. Isn’t that cozy…
The city didn’t hire an outside attorney to oversee this matter to make sure that there was no conflict of interest. It should have.
Rule 4-1.8 of The Rules Regulating the Florida Bar states that a lawyer is prohibited from entering into a business transaction with a client unless three terms are met. First, the terms must be fair and reasonable to the client.
Second, the attorney must advise the client to seek independent legal counsel on the transaction. Finally, the client must expressly waive any conflict in writing where the attorney represents the client in the transaction.
It doesn’t appear that Thomas Pepe followed Rule 4-1.8 when he and the city entered into the contract in October 2014.
And now it gets interesting: This wasn’t just a one-time oversight.
In February 2017, there was an addendum to the contract, extending it until April 16, 2018. That addendum was signed by Thomas Pepe, private attorney, the city manager, and it once again said: “Read and Approved as to Form, Language, Legality, and Execution Thereof” by Thomas Pepe as City Attorney.
Pepe also signed Resolution 18-17-14819 attesting to the legality of contract extension with himself. No documents were provided showing that Pepe gave the city any of the disclosures required by the Florida Bar. The city didn’t hire an outside lawyer for this extension.
Earlier this year, the city once again extended Pepe’s contract – this time to 2019. It’s better than an even bet that he once again advised the city on the legality of a contract that he was a party to. It’s also likely he didn’t make the required written disclosures this time, either. Once again, no outside lawyer looked the deal over to see that the people of South Miami were protected.
By all appearances, Pepe doesn’t have two heads. But when it comes to his own contracts, he wears two hats: as the attorney bargaining for the best deal for himself while acting as the watchdog for the best interests of the people of South Miami. It’s an idea as old as the Bible itself – a man can’t serve two masters.
The conflicts of interest in the hiring, rehiring, and re-rehiring of Pepe seem all too apparent, except maybe for Thomas Pepe and the blind mice on the City Commission.
Not long after the founding of the United States, English clergyman, academic, and writer.
Henry Kett wrote: “Every man who is his own lawyer, has a fool for a client.” To that we must add, any city that allows the city attorney to pass upon the contract that retains him has an fool for an attorney, as well.