The absentee ballot fraudulently “re-elected” North Miami Beach Faux Commissioner Phyllis Smith will go to any length to avoid complying with Florida Sunshine Laws.

On March 25, 2018, a public records request was made for “the telephone records of Phyllis Smith’s cellular phone on the evening of March 20, 2018 between the hours of 5:00 PM and 8:00 PM.”

Although the City Clerk responded the next day that she would obtain the records and fulfill the request “as soon as she receives them,” we had to follow up with a reminder email on April 8, 2018 and again on May 8, 2018.

When we still received no response, on May 16, 2018 at 12:22 PM, we enlisted the assistance of the Miami Dade County Commission on Ethics and Public Trust in an effort to receive the records.

Twelve minutes later at 12:34 PM, the Clerk emailed back, “Commissioner Smith stated that she would respond upon receiving her itemized phone bill, she has yet to provide the information per this email I will contact her again.  Thank you.”

Apparently, our involving the Ethics Commission FINALLY  elicited a response from Phyllis Smith!

At 1:26 PM that same day, we responded, “I made that request nearly two months ago. She had to have received at least one phone bill since that time.  Is she again refusing to comply with Florida public records laws?  This is not the first time.  I am now expanding my PRR to include all phone calls in the last two months.”

At 2:00 PM, Phyllis herself wrote back, “Regarding the last two months phone calls, once again, I do not have latest calls, that will have to wait.”

Excuse me?

At 2:44 PM, we responded:

This response from Phyllis Smith is completely unacceptable, not to mention patently untrue.  My original request for her phone records was made on March 25, 2018.  It is absolutely impossible that she has not received at least one phone bill in the 52 days since I first asked for her records.

If Phyllis Smith refuses to comply with Florida Statutes 119 regarding public records requests and produce her phone records immediately, I will have no choice but to file yet another complaint against her with both the Miami Dade and Florida Ethics Commissions.

I suggest she govern herself accordingly.

Very truly yours,

Stephanie Kienzle

That’s when the fun began.

On May 22, 2018 at 10:09 AM, the Communications Director for the Ethics Commission, Rhonda Sibilia, advised that “Commissioner Smith recently reached out to this office for guidance,” and provided the Commission’s opinion on the matter.

At 10:34 AM that same day, we also received the following email from Susannah Nesmith, Investigator for the Ethics Commission:

Hi Stephanie,

I’ve been assigned to investigate North Miami Beach’s response to your request for Commissioner Smith’s phone records. I’ve got the email you sent to Rhonda with the initial request from March 25, Pam’s reply on March 26, your follow-ups on April 8, May 8 and May 16 and Smith’s email to you on May 16.

Do you have any other emails from anyone at the city regarding your request? I just want to make sure I have a complete record.

Also, please let me know if the records are finally produced.

Thanks,

Susannah Nesmith

By way of “reaching out for guidance,” FIFTY EIGHT DAYS AFTER MY ORIGINAL REQUEST,  Phyllis called COE Executive Director Joe Centorino for an opinion.

On May 17, 2018 at 3:30 PM, Mr. Centorino opined:

From: Centorino, Joseph (COE)
Sent: Thursday, May 17, 2018 3:30 PM
To: ‘Smithbuzz@gmail.com’ <Smithbuzz@gmail.com>
Cc: Turay, Radia (COE) <Radia.Turay@miamidade.gov>; Diaz-Greco, Gilma M. (COE) <Gilma.Diaz-
Greco@miamidade.gov>; Perez, Martha D. (COE) <Martha.Perez2@miamidade.gov>; Sanchez, Gerald (CAO)
<Gerald.Sanchez@miamidade.gov>; Kirtley, Eddie (CAO) <Eddie.Kirtley@miamidade.gov>
Subject: INQ 18-120 Phyllis Smith, Commissioner, City of North Miami Beach (Public Records)

Commissioner Smith:

You have inquired concerning whether phone numbers appearing on your private cell phone from incoming or outgoing telephone calls are public record. I understand that you generally use your business phone for telephone calls, including calls that are related to your service as a Commissioner in the City of North Miami Beach. It is my understanding that this a privately-owned cellphone that you or your husband pays for; that it is not a city-issued cellphone paid for by the City of North Miami Beach. You have indicated that many of the calls that would appear on the phone records, to which you have access, include personal calls made to or received from family members, as well as calls from constituents or other City-related business that, in some cases, have been made by persons who would prefer that their identities or phone numbers not be disclosed. You have access to the records, due to the phone being maintained and paid for through your private business. The City does not receive these records in the course of City business or for the purpose of paying for or reimbursing you for phone usage.

This agency has the authority to interpret and render opinions on public records by virtue of Section (A)(3) of the Miami-Dade County Citizens’ Bill of Rights, which provides as follows: “All audits, reports, minutes, documents and other public records of the County and the municipalities and their boards, agencies, departments and authorities shall be open for inspection and copying, consistent with the requirements of the State of Florida public records laws, at reasonable times and places convenient to the public.” The State of Florida public records laws are embodied in Chapter 119, Florida Statutes, which includes the following provision: “Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of public records.” Section 119.07(1)(a), Florida Statutes.

Under these circumstances, it is my opinion that the records of any calls received by or made by you on your private phone that relate to City business, and which are not otherwise exempt under Chapter 119, Florida Statutes, are public record and should be provided upon request, pursuant to Section (A)(3) of the Citizens’ Bill of Rights and Section 119.07. See Media Gen. Operation, Inc. v. Feeney, 849 So. 2d 3 (1st DCA 2003). You should consult with the City Clerk, the official custodian of records for the City, in connection with responding to this request, as well as determining whether there is any exemption under Florida Law regarding any particular record. If necessary, you should consult with the City Attorney on such issues. For example, the home telephone numbers of active or former sworn or civilian law enforcement personnel are confidential and exempt from disclosure pursuant to Section 119.071(4)(d)2.a.(I). It is my opinion that you may redact telephone numbers for telephone calls that entirely private, i.e., related only to personal or private business matters. You must make a good faith effort to go through the records and provide those that relate to City business. Telephone records that relate to City business, even those from individuals who would prefer not to have the numbers revealed, must be provided unless otherwise exempt from disclosure.

Sincerely,

Joe Centorino
Joseph M. Centorino
Executive Director and General Counsel
Miami-Dade Commission on Ethics and Public Trust
19 W. Flagler Street, Suite 820
Miami, FL 33130
Tel: (305) 579-2594
Fax: (305) 579-0273
ethics.miamidade.gov

Eleven minutes later, in an email to Mr. Centorino, Phyllis whined that being required to comply with Florida public records laws was “unreasonable.”  She wrote back:

From: Phyllis Smith [mailto:smithbuzz@gmail.com]
Sent: Thursday, May 17, 2018 3:41 PM
To: Ethics (COE) <ethics@miamidade.gov>
Subject: Phone records request, Joe Centorino

Mr. Centorino,

Thank you again for taking the time with me today regarding the above subject. As you know, this is a very sensitive issue. There is NOTHING to hide, but there is a lot of very personal phone numbers on those records. My clients in my real estate profession, my friends that have phone numbers that they do not give out (my best friend is a physician), and random phone numbers of people that call from the real estate signs. There may even be phone numbers that are on the ‘do not call’ list.

My phone is owned and paid for by Central Plumbing. The family and business phones were set up by my husband that way years ago.

This is truly a little bit complicated because going back two months and hundreds of phone calls, it will be very difficult to try to distinguish the calls. Of course, I will do my best.

Just seems unreasonable to give out phone numbers without permission.

That is never the way I handle a phone number request. I always call the person first and ask if it okay to give out their number. If they say yes, I call back to the one requesting and give them the number.

How do I know, once this phone list is received, the person requesting these numbers won’t start calling them. For instance, a gentleman that owns a building in our community had his secretary call me for an appointment, is she going to receive a call now asking what we spoke about? Or the 95 year old women who called to ask for three tickets for NMB’s Mother’s Day breakfast. Again, nothing to hide; however, it will be annoying for these people, I am sure.

Stating that talking to a family member about City business is a required number to give also seems unreasonable. As the call may mention the name of the new City Mayor. Is that really City business?

Any further help you can give, as always, will be more than appreciated!

Thank you,
Phyllis Smith
Commissioner, North Miami Beach

To which, Mr. Centorino replied:

From: Ethics (COE)
Sent: Thursday, May 17, 2018 4:12 PM
To: ‘Phyllis Smith’ <smithbuzz@gmail.com>
Cc: Turay, Radia (COE) <Radia.Turay@miamidade.gov>; Diaz-Greco, Gilma M. (COE) <Gilma.Diaz-
Greco@miamidade.gov>; Perez, Martha D. (COE) <Martha.Perez2@miamidade.gov>
Subject: INQ 18-120 Supplement

Commissioner Smith,
I do not think that my opinion would change based on anything in your email. The question of what is connected to City business may involve some judgment, but it should reflect a good faith attempt to comply with the public records law. It does not make any difference that the individual involved is a family member or a personal friend, if the call involved City business related to your position as a City Commissioner. Personal phone calls with family members or friends, or phone calls concerning your private business affairs or medical appointments, are not public record. There is no need to provide any information other that what is in the records that are maintained. For example, there is no need to create any record to provide details of any conversation, only what is already recorded in the records you have access to.

Sincerely,

Joe Centorino
Joseph M. Centorino
Executive Director and General Counsel
Miami-Dade Commission on Ethics and Public Trust
19W. Flagler Street, Suite 820
Miami, FL 33130
Tel: (305) 579-2594
Fax: (305) 579-0273
ethics.miamidade.gov

On May 31, 2018 we FINALLY  received a response in the form of an invoice for $60.49 for copies of Phyllis Smith’s two phone bills.

Wait, WHAT?

When I questioned the exorbitant bill, the City Clerk explained, “Hi Stephanie, the charge is 39 hours at $1.44 per. Hour. We charge the hourly rate of the person who performs the task.  Commissioner Smith did the majority of the work herself and the hourly rate of the Commissioners is $1.44.”

The same way Phyllis lies about how many phone calls she receives from “residents,” we’re betting she’s lying about how long it took her to redact her own phone bills.

You can bet we weren’t about to pay sixty bucks for the “privilege” of reviewing those damn phone bills.

And a good time was wasted by all.

This was not the first, nor the last, time Phyllis has refused to respond to public records requests.

You will recall that last year on October 11, 2017, we attempted to obtain from Phyllis an itemized breakdown of the $1,900.00 she reported on her Florida Form 9 Quarterly Gift Disclosure as a “misc. gift” she received when she flew to Monaco in March of 2017.  After yet another back and forth exchanges of emails with the City Clerk, on November 20, 2017 we FINALLY  received the following response:

The breakdown for the miscellaneous items for Commissioner Smith in the amount of $1,900 include the following:

• Spa Day in Monaco
• Day trip to Nice with lunch
• Day trip to San Remo with lunch

I immediately wrote back and asked how much each item allegedly cost.  On December 19, 2017, we FINALLY  received the following response:

Hi Stephanie, There is not an actual breakdown of each service. The amount was estimated as to comply with the reporting of gifts filing. Thank you.

Interesting, eh?  Well, that was two months we’ll never get back.

But, wait.  There’s MORE!

After Phyllis returned from Monaco, we heard from several sources that she received as a gift a very expensive handbag, and that she was flashing it around City Hall, and which she never reported on her Form 9.

We also heard that she also met with individuals involved in her trip to Monaco for the purpose of showing them properties for rent or purchase in North Miami Beach.

According to Florida Statute 112.312(12)(a), a “gift” is defined as “that which is accepted by a donee or by another on the donee’s behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for the donee’s benefit or by any other means, for which equal or greater consideration is not given within 90 days, including:

1. Real property.
2. The use of real property.
3. Tangible or intangible personal property.
4. The use of tangible or intangible personal property.
5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex, or national origin.
6. Forgiveness of an indebtedness.
7. Transportation, other than that provided to a public officer or employee by an agency in relation to officially approved governmental business, lodging, or parking.
8. Food or beverage.
9. Membership dues.
10. Entrance fees, admission fees, or tickets to events, performances, or facilities.
11. Plants, flowers, or floral arrangements.
12. Services provided by persons pursuant to a professional license or certificate.
13. Other personal services for which a fee is normally charged by the person providing the services.”

Although Phyllis reported the “gifts” of airfare, hotel and food she received on the trip to Monaco, she most certainly did not report the “gift” of a handbag estimated to be worth between $2,000 and $2,500.00.

In addition, because the artist who invited Phyllis to Monaco, Stephane Bolongaro, donated a sculpture to the City of North Miami Beach, he (as well as anyone involved in this trip) is considered a “vendor” of the city.

Accordingly, Florida Statute 112.311(1), states, “It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist.”

In essence, if Phyllis did, in fact, act as a real estate agent to the individuals from Monaco for the purpose of renting or selling real property to them, this was an egregious “conflict of interest,” which Florida Statute 112.312(8) defines as a “a situation in which regard for a private interest tends to lead to disregard of a public duty or interest.”

So there’s that.

Instead of relying on rumors and innuendoes, we decided to make a public records request and go straight to the horse’s mouth (no pun intended, of course) to get the answer to these burning questions.

On July 28, 2018, we wrote to the City Clerk:

Please obtain from “Commissioner” Phyllis Smith, and supply to me, answers to the following two questions:

1. During her trip to Monaco from March 23, 2017 through March 29, 2017, did Phyllis Smith receive as a gift a handbag? If so, what is the value of said gift?

2. Upon her return from Monaco, did Phyllis Smith show any real estate, whether residential or commercial property, to any individuals involved in any capacity with her trip to Monaco? If so, did such showing result in a real estate commission for Phyllis Smith, and if so, please provide the real estate listing agreement entered into between Phyllis Smith and her client, as well as the final contract for lease or purchase of said real estate.

Please remind Phyllis Smith that she is required by Florida Statute 119, Public Records, to respond to this public records request. Please also remind her that she is required by Florida Statute 837.02, Perjury in Official Proceedings, to respond to this public records request truthfully.

On August 13, 2018, over two weeks later, we received the following response:

Hi Stephanie, there are no documents in my possession that relate to your request. Please see the below. Thank you.

Public records are defined as any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type, this includes drafts but does not include those records specifically exempt pursuant to Ch. 119, Fla. Stat.  The records include documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material regardless of physical form, characteristics, or means of transmission.  

The obligation of a records custodian to comply with a public records request does not extend to requests for information from the records or to create and/or reformat records.  See Wootton v. Cook, 590 So. 2d 889 (Fla. 2002); see also, Seigle v. Barry, 422 So.2d 63 (Fla. 4^th DCA 1982); see also, Fla. AGO 80-57, Fla. AGO 92-38, and Fla. AGO 08-29.

The below requests do not fall within the scope of the Public Records Law, Ch. 119, Fla. Stat.

Oh, dear.  Not again!

As usual, we responded to the Clerk last night:

Pam, thanks for your response.  However, the fact that you have no documents in your possession does not excuse Phyllis from being required to truthfully answer the questions I posed.  I did not ask whether or not you have documents.  I posed questions that can only be answered by Phyllis.

Please revisit this public records request.  I again demand answers from a public official who has the responsibility and obligation to supply the information that the public is entitled to know.

I certainly hope I will not have to resort to filing a complaint with the Florida Ethics Commission and/or retain legal counsel in order to obtain a response to my request.  However, I will do whatever is necessary to make sure that Phyllis Smith and the City of North Miami Beach complies with Florida Statutes 119.

And because we were feeling particularly annoyed, we again emailed the City Clerk this morning, this time copying the interim City Manager, interim City Attorney, as well as Rhonda Sibilia and Joe Centorino of the Miami Dade County Commission on Ethics and Public Trust, the following email:

Dear Ms. Latimore,

Florida Statute 119.01(12) states:

“Public records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

While you claim that, “The obligation of a records custodian to comply with a public records request does not extend to requests for information from the records or to create and/or reformat records, “I believe that, as an elected official, Phyllis Smith is obligated under Florida Statute 119 to provide the information I requested, whether or not she is in possession of physical documentation of same.

In addition, please immediately provide copies of Phyllis Smith’s airline tickets when she traveled to Monaco from March 23 to March 30, 2017.

Please also provide a copy of the U.S. Customs and Border Protection CBP Form 6059B Customs Declaration that she filed when she returned to the United States on March 30, 2017.

Your assistance in this matter is greatly appreciated.

This time, we decided to stop wasting time waiting for Phyllis to come clean, so we also filed a public records request under the Freedom of Information Act (FOIA) with the U.S. Customs and Border Patrol, as follows:

A North Miami Beach elected official, Phyllis Smith, traveled to Monaco on March 23, 2017, and returned to Miami on March 30, 2017, allegedly on city business. I have reason to believe that she received a handbag (worth approximately $2,000 to $2,500) as a gift from the individuals who invited her on the trip, which she did not claim on her required Florida Form 9 gift disclosure. See attached. Please provide a copy of the CBP Form 6059B Customs Declaration that she filed when she returned to the United States on March 30, 2017.

Our request is currently under agency review.

That’s okay.  We’ll wait.  We’ve got lots of popcorn.

In the meantime, our Phyllis Smith Recall Team is getting ready to do their thing.

Just saying.

Stephanie