Emotions High as Ex-Mayor Lindsay Wins $35K for Ethics Probe Fees

Key Biscayne Mayor Mike Davey looks down during debate over whether to reimburse his predecessor, Mayra Peña Lindsay, for legal fees in an ethics investigation, June 11, 2019. (Key News/Tony Winton)

Former Key Biscayne Mayor Mayra Peña Lindsay will get about $35,000 to cover her legal bills in an ethics investigation that ultimately cleared her of criminal wrongdoing, as the Village Council voted 4-1 Tuesday to reimburse her. It was a tense session where speakers often became emotional as they recounted the ejection of resident Don Elisburg from a public “Sunshine meeting” held March 1, 2018 about Village pensions.

Sunshine meetings are gatherings of elected or appointed officials held outside of formal meetings. Notice of the 2018 gathering, posted by the Village Clerk, stated it was “open to the public.”

While most members of Council said Lindsay was wrong to have closed the meeting, they also said she deserved to be reimbursed for making a mistake.

Village Manager Andrea Agha had repeatedly denied Lindsay’s fees request, saying existing Village Code did not authorize her to make reimbursement. That put Lindsay in the position of asking the Council to grant an exception. The resolution was introduced by Council Member Ignacio Segurola. An effort by Council Member Luis Lauredo to cap the reimbursement at $25,000 failed for lack of a second. He cast the lone dissenting vote.

It was a tense evening that started with comments by Elisburg.

“The former mayor is not the victim here,” he said. “The victim here is openness and transparency when it comes to Sunshine laws.” Elisburg, who did not oppose reimbursement, denied making the complaint that triggered the probe that resulted in months of document searches and sworn interviews by prosecutors. It is not clear who filed the complaint. Karl Ross, an investigator for the Ethics Commission, wrote to Elisburg Wednesday that the investigation started after an anonymous complaint.

Nancy and Don Elisburg, at podium, address Key Biscayne Village Council about reimbursment for legal fees requested by former Mayor Mayra Peña Lindsay, seated behind him, alongside Alvin Lindsay, June 11, 2019. Elisburg was ejected from a public “Sunshine” meeting in 2018 that led to an ethics investigation that cleared the former mayor. (Key News/Tony Winton)

Lindsay’s husband, Alvin Lindsay, was granted time to lay out legal argument supporting reimbursement. He claimed the former mayor was within her rights to hold a closed meeting, but also said she remained “contrite” for what happened. The word “contrite” was used by Assistant State Attorney Isis Perez in a memo explaining a decision to not press a criminal charge. Mr. Lindsay argued Florida case law required the Council to reimburse the ex-mayor because she prevailed, even if no formal charges were ever filed.

Council members said the experience should be a lesson about conducting public business.

“We got cavalier” about holding Sunshine sessions, said Mayor Mike Davey, who said Lindsay made a mistake. “We all make mistakes, we own up to them, and we move on.”

He pledged greater transparency: “there are no executive sessions outside of this room, and that’s it.”

Council Member Brett Moss, who came in at the tail end of the closed 2018 meeting, agreed. “I believe that it was a clear mistake,” he said. “I don’t think it was ill intent.”

A thornier issue involved making changes to the Village Code and setting a precedent.

Village Attorney Stephen Helfman, who had advised the former mayor to cancel the 2018 Sunshine meeting, said approval of lawyer David Rothman’s fees would create a precedent for his rate — $650 an hour — to be deemed “reasonable” for future ethics or Sunshine cases.

He noted that the three other council members who attended the closed 2018 meeting – Moss, Katie Petros and Luis de la Cruz – could also have been investigated and could also have sought legal counsel and reimbursement.

“They are as equally as responsible for participating in a meeting that was improperly closed,” Helfman said. But he cautioned that a broader reimbursement rule to cover officials who are investigated, but not charged, could create expensive, unintended consequences.

“Investigations can go on for years and years. You could be looking at a $500,000 bill,” he said. “Are you going to open a wide-open check?” he asked. If a future Council were to be investigated for a hypothetical exclusion of a person from a meeting, Helfman warned, “we’d have seven of you with different lawyers all billing away at $500 an hour.”

Helfman said he would draft a change to the reimbursement code for Council to consider at a future meeting.

Elisburg and several members of council also directed criticism at comments made on social media “chats” about the investigation and the fees issues. “They are running around with mistruths,” said Mayor Davey. “I’m so frustrated by the malignancy that’s in this community right now with these people with these stupid chats that take people’s names down. Don and Nancy (Elisburg) don’t deserve that,” he said.

After the vote, the former mayor paused for a few minutes to speak with Elisburg, who was sitting in the back row of the chambers.

Both smiled, and Elisburg waved her goodbye.

—

This story was updated to indicate new information concerning the initiation of the Commission on Ethics inquiry.

[EDITOR’S NOTE: Don Elisburg is on the board of directors of Island Media, which publishes Key News. He had no role in the preparation of this story, other than his public comments at Tuesday’s meeting and the forwarding of email sent to him by the Ethics Commission]
-30-