Letter from the City Manager to the Mayor and Commission

Dear Commission,

I am informed of a series of actions allegedly committed by Commissioner Bob Welsh which may have negative consequences on our ability to proceed with the process of selection of a design and build firm. Additionally, I am further concerned that a commissioner may have willfully disregarded city staff request and recommendations to follow the existing purchasing guidelines as well as the Charter, County Code on purchasing, as well as applicable laws governing the process.

Attached please find the following documents:

Email from Mr. Steven P. Kulick dated Tuesday, April 10, 2012;
The City of South Miami RFP for design/build of Murray Park Community Pool abridged version up to page 5;
A copy of the MDC Ethics Conflict of Interest and Code of Ethics Ordinance relating to the Cone of Silence;
City of South Miami Charter, Article III;
MDC Code of Ordinance, Part III, Chapter 2, Article I-In General Sec. 2-11.1(t);
U.S. 24 CFR Part 85, Subpart 36-Procurement;
Contract between the City of South Miami and Hector Mirabile, PhD
C3TS letter from Mr. Eddie Lamas, AIA to Commissioner Bob Welsh, Jr., dated April 9, 2012.

City staff received a series of email and telephone calls which promulgated me to detail the series of action by Commissioner Bob Welsh in an effort to protect the integrity of the purchasing process for the City of South Miami. I should point out that Commissioner Welsh was verbally advised on numerous occasions, by me and possibly others, that he needed to allow staff and I to manage the City and that his actions was considered a violation of the City Charter, specifically Chapter 3. Additionally, he was advised that he may be violating he cone of silence and the purchasing guidelines for the City, County, and Federal governments. To date he continues having meetings with Miami Dade County staff soliciting extensions for the CDBG grants without the knowledge of the City Staff and Commission; requesting engineering review of a personally designed pool from a consultant which is identified in at least one of the vendors who submitted a proposal to our Murray Park Pool RFP; and soliciting a request for quotes from an engineering firm C3TS without the knowledge of the City staff, manager, or direction from the City Commission.

I call your attention to Mr. Kulick’s email to me dated April 10, 2012. On April 4, 2012, Central Services received a call from Di Pompeo Construction, one of the two design build respondents to the City’s RFP for the Murray Park Community Pool, regarding contact made by Commissioner Welsh to a sub-consultant for the two companies which responded to the RFP. From a discussion between Mr. Kulick and the design engineer consultant it appears that Commissioner Welsh called him and identified himself as a contractor and desired input on a design. Days later Commissioner Welsh showed up at Aquadynamics office unannounced with a rough pool design which was considered by the engineer as a non-buildable plan. According to Mr. Kulick the Aquadynamics is a consultant listed by both RFP respondents in their respective proposals. It should be pointed out that although the engineer believes the contact by Commissioner Welsh is innocent the following is posited as to what is included in the cone of silence:

The City of South Miami RFP for the design/build of Murray Park Community Pool, Section 1.0 INSTRUCTIONS TO PROPONENT, paragraph 3-Cone of Silence; specifically states that the City of South Miami is using the “Cone of Silence” in accordance with Miami Dade County Ordinance Nos. 98106 and 99-1.

Miami Dade County Code of Ordinance, Article I, Sec. 2-11.1 Cone of Silence, section (a) (v): Any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist or consultant and the Mayor, County Commissioners and their respective staff; and 3. 24 CFR Part 85, Subpart 36 (b) (1) Grantees and sub-grantees will use their own procurement procedures which reflect applicable State and local laws and regulations, provided that the procurements conform to applicable Federal law and the standard identified in this section.

24 CFR Part 85, Subpart 36 (b) (3) Grantees and sub-grantees…No employee, officer or agent of the grantee or sub-grantee shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved.

Accordingly, by Commissioner Welsh deliberately or innocently contacting Aquadynamics to review his pool design for the purpose of attaining information on a possible plan for the Murray Park Pool project, it may be considered an apparent violation of the City, County, and Federal codes or regulations relating to purchasing and the “cone of silence.” Additionally, I would like to point out that it is the job of the City Manager and his/her staff to address the bidding and purchasing process as specified in the City of South Miami Charter, Chapter III, Section 5. Powers and Duties: “The City Manager shall be the chief executive officer and head of the administrative branch of the City government. He or she shall be responsible to the Commission for the proper administration of all affairs of the City. He or she shall have the following powers and duties to:

H. Contract for the purchase of any goods or services for any department of the City in an amount up to and including$5,000.

All contracts for goods and services in excess of $5,000 shall be approved by the City Commission. All purchases shall be approved after competitive conditions shall have been maintained and competitive bids sought from at least three different sources of supply if available, such determination to be made by the Commission, and, notwithstanding the ….”

Consequently, by Commissioner Welsh taking it upon himself to solicit assistance in the review of his pool design plan a violation of the City’s Charter occurred by his circumventing the purchasing process and personally conducting City business without the express permission of the City Commission or knowledge of the City Manager. Additionally, Commissioner Welsh is in violation of the Employment Agreement between the City of South Miami and Hector Mirabile, PhD where Commissioner Welsh’s surreptitious methods regarding the pool design prevents the City Manager from properly managing the City’s purchasing process.

Commissioner Welsh also solicited, without authorization from the City Commission or the knowledge of the City Manager, a quote from C3TS of $50,000 for the submittal of modified drawings and documentation required for the proposed revisions. By singly and without Commission authority or City Manager knowledge, attempting to obtain a bid/quote from a vendor while at the same time an RFP process is active violated 24 CFR Part 85, Subpart 36- “Procurement”, (d) Methods of procurement to be followed, (2) Procurement by sealed bids (formal advertising). Additionally, this willful violation of the purchasing process of the City of South Miami also violated the County Code on Purchasing and the City’s purchasing process. Lastly, it also violated the CDBG grant contract which requires the City to follow the appropriate purchasing guidelines. Lastly, as aforementioned this violation also violated the employment contract between the City of South Miami and Hector Mirabile, PhD. The manager can never effectively or properly manage the City’s department if commissioners take it upon themselves to personally conduct city business and thus violate the laws and rules set in place.

At this point since Commissioner Welsh did not adhere to my advice of refraining from attempting to manage the City by way of perceived authority of his office and thus potentially damaging the ability of the City to continue with the Murray Park Pool Project; and since I am aware of these violations of the various rules and codes; I am now held accountable if I do not disclose this information to Miami Dade County’s proper authority over the CDBG grant. It is regretful that I am placed in this predicament since I am not use to having to inform an external party to the City of violations by one of my superiors but I am left no alternative and was unfortunately placed in this situation. I am thus respectfully advising the City Commission that I must report these violations to Miami Dade County for their review and consideration. In the meantime we will proceed with the RFP selection process unless otherwise directed by the City Commission, Miami Dade County, or other competent authority over the CDBG process.

Sincerely,

Hector Mirabile, Ph.D.
City Manager
City of South Miami
6130 Sunset Drive, FL 33143-5093
305-668-2510
hmirabile@southmiamifl.gov

More Letters Below (.pdf format)
South Miami Charter Article II
MD County Code or Ordinances Article I
Letter from C3TS to Comm Welsh April 2012
Employment Agreement CM Mirabile
E-mail to CM from Kulick ref C3TS Proposal 4-9-12
City of South Miami request for poposals for design build Murray Park pool
24 CFR Part 85 Procurement

 


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