Savvy businessman or sloppy lobbyist? Ex-city attorney’s job-shopping tactics questioned

Jose Smith, the former city attorney from Miami Beach — and then North Miami Beach — is contract shopping in Miami-Dade municipalities on behalf of Bryant Miller Olive, where he was recently hired to lead its new full-service municipal government practice.

The longtime government operator has leveraged his many Miami-area contacts in recent months to informally angle for new contracts and city attorney positions in at least North Bay Village, Bal Harbour, and again North Miami Beach.

Since being hired by Bryant Miller Olive in late October, Smith has cost his firm at least one municipal contract. He also faces a pending complaint for unregistered lobbying and conflict of interest made to the Miami-Dade County Commission on Ethics and Public Trust.

Smith has also been successful in soliciting early consideration for city attorney positions in at least two cities where the attorneys face political opposition from newly elected commissioners. Both positions are expected to come open in the near future.

Powell submitted a complaint to the Miami-Dade Commission on Ethics and Public Trust, accusing Smith of unregistered lobbying in North Bay Village and conflict of interest in an effort to take his job. The complaint includes text messages from Smith to Commissioner Andreana Jackson — at that time the vice mayor — in which Smith expresses his desire to be village attorney in North Bay Village, if “Marvin” were to be terminated, apparently confusing Powell with the only other black man who sits on the dais, newly elected commissioner Marvin Wilmoth.

The proposal to terminate Powell’s contract did not pass. Instead Powell received three months probation, at the end of which the commission will consider soliciting bids to replace him. A representative from Bryant Miller Olive said the firm would likely put in a bid at that time. Bryant Miller Olive currently provides the village’s labor and employment counsel through an existing contract.

Powell was appointed city attorney by the previous commission in November 2017, and though he had worked closely with cities in the past, had no experience as city attorney. He oversaw a series of expensive terminations of high-level staff members, and in one case, the termination of the former police chief, which resulted in a whistleblower suit.

At Tuesday’s commission meeting, Mayor Brent Latham and Commissioner Juliana Strout, both newly elected, accused Powell of giving the commission bad legal advice.

“Powell was not advising the residents and not advising the commission to matters that were correct,” said Strout, who sponsored the agenda item to fire Powell. “I have personal relationships with [Smith]. He served as municipal attorney for many years,” Strout said.

Though she did not elaborate on the nature of that relationship, Smith attended Strout’s Sept. 30 campaign event, and is pictured with her as she campaigned on Election Day. He also informally consulted for Strout on legal questions during her campaign when Powell filed an ethics complaint about a candidate video about Strout posted to YouTube.

The complaint against Strout was eventually thrown out — it was one of multiple ethics commission complaints Powell has filed this year. The attorney is also personally suing a local blogger for defamation.

Powell’s ethics complaint against Smith includes an email from Smith to Jackson, sent after Strout added Powell’s termination to the agenda. In it, Smith said he would work for all five commissioners to “make everyone look good.” He also pointed to Bryant Miller Olive’s reputation as a nationally recognized firm with expertise in municipal law and competitive pricing. “So I hope we can work together as long as you are serving on the Village Commission,” his email concluded.

Neither Smith nor his firm was registered to lobby in North Bay Village at the time of the email, and the discussion to terminate Powell and replace him with Smith was already on the Village Commission agenda.

Jackson said she turned over the texts and emails to Powell out of concern that they violated county lobbying and conflict of interest ordinances. According to county law, a lobbyist is someone who seeks to “encourage the passage, defeat, or modifications of any ordinance, resolution, action or decision of the City Commission.”

On Tuesday, Jackson also questioned whether Smith had ghost-written the agenda item to terminate Powell, an allegation echoed in Powell’s complaint. Strout dodged the question on the dais, but told the Herald, she “wrote the language” by pulling from examples she found online.

“Taken together, the conduct of North Bay Village Commissioners, Jose Smith and Bryant Miller Olive, and the Village attorney raise troubling issues of conflict of interest and open governance, and potentially thorny issues of both legal ethics and government ethics,” Anthony Alfieri, a University of Miami professor and expert on government ethics, said after reviewing Powell’s complaint at the Herald’s request. Alfieri questioned the motives of all involved in the North Bay Village scuffle over the village attorney position, including those of Powell, who he said was using the ethics commission as a political tool.

Smith declined comment. Bryant Miller Olive principal David Miller declined to answer the Herald’s questions, and instead submitted this written statement:

“Neither Mr. Smith nor the Firm have received from the Ethics Commission any complaint and it would be inappropriate to comment. The Commission’s rules make all complaints and all related Commission activities and documents confidential until confidentiality is waived by the respondent, a probable cause determination is made, the complaint is dismissed, or the Commission orders a public hearing or issues a public report.”

(Miller is married to a Miami Herald reporter.)

Smith, who was city attorney of Miami Beach from 2006-2014 and city attorney of North Miami Beach from 2014-2018, has also been wooing commissioners in other municipalities on Bryant Miller Olive’s behalf.

In North Miami Beach, Smith contributed to several candidates’ campaigns. The new commission that took power after the Nov. 6 elections may be more favorable to Smith than the one that gave him the boot in July. In text messages to Jackson in North Bay Village, Smith claims to have enough votes on the new North Miami Beach commission to get his old job back.

On Oct. 30, North Miami Beach terminated its contract with Bryant Miller Olive to represent North Miami Beach’s interest in negotiations with an employees union. Two days earlier Smith, the firm’s recent hire, emailed a group of people, including journalists, accusing the City Council of breaking Florida law. Smith’s termination agreement from July includes a non-disparagement clause, prompting North Miami Beach to sever relations until the dispute was satisfied, according to city officials.

Despite that, Mayor Anthony DeFillipo sponsored an item on the North Miami Beach council’s agenda to terminate the current city attorney, Sarah Johnston, and replace her with Jose Smith. Johnston replaced Smith on an interim basis in July, when Smith negotiated a separation agreement with the city. The commission pushed Smith out after a five-year tenure during which his contract was extended for “exemplary performance.”

Smith has also sat down with at least one member of the North Miami Beach commission to discuss his desire to return. He also recently had lunch with Bal Harbour Councilman Buzzy Sklar, an old friend from the days when Sklar owned restaurants in South Beach. Sklar described the meeting as a “friendly lunch” where Smith happened to mention his firm’s availability in municipal legal representation.

“It wasn’t a formal pitch,” Sklar said.

Bal Harbour is not in the market for a new attorney. The village has been represented by Weiss Serota for many years, and the village council recently approved an agreement to continue that arrangement.

Although the county ethics commission cannot comment on specific, pending cases, communications director Rhonda Sibilia gave a general statement on lobbying city governments.

“It is conceivable that an individual can make a presentation about a subject that is not pending before a government body without registering, but that is a very fine line that should be determined by requesting an opinion of our legal staff by the individual wishing to make the presentation before he or she does so,” said Sibilia.

Neither Smith nor Bryant Miller Olive is registered to lobby in North Miami Beach or Bal Harbour. After the filing of the ethics complaint, Miller and Smith both registered to lobby in North Bay Village.

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Republished by the Law Office of Scott A. Ferris, P.A.