FORT LAUDERDALE, Fla. – Local 10 News has uncovered new details in the ongoing controversy between Fort Lauderdale Mayor Dean Trantalis and former city auditor John Herbst, whose commission race win in the mid-term election is being questioned by a rival who Herbst says the mayor endorsed during the election.
City Attorney Alain Boileau confirmed to Local 10 that he had no knowledge that the mayor was seeking the Florida attorney general’s opinion on the commission race until he was “copied in on the transmittal email.”
Last Friday, Trantalis penned a letter to Attorney General Ashley Moody asking for an “advisory opinion” on the city’s District 1 race won by Herbst despite leading the charge to fire him back in February.
Local 10 News’ Christina Vazquez asked Herbst if he thinks there is some friction between himself and the mayor and if the friction is spilling over into decisions being made about this race?
“I absolutely do,” he responded.
“The City Charter states that ‘The city commission shall be the judge of all municipal elections and referendums and other qualifications of its members, subject to review by the courts,’” Herbst told Local 10 News in a statement. “The language is clear on its face and requires no clarification. This is simply a further attempt to delay seating me as required by the City Charter and denies the rights of the residents of District 1 who voted overwhelmingly to elect me to represent them.”
Local 10 News has attempted to contact Trantalis for comment on the matter, but his chief of staff said, “The mayor is not available today. Thus, there is no comment.”
Following the election, two of the candidates who lost that race, Christopher Williams and Kenneth Keechl, filed a residency qualification challenge.
Herbst showed Local 10 News documentation of a lease agreement signed in April at his Fort Lauderdale apartment which he says meets the city charter’s residency requirement.
Williams said hours after he withdrew his challenge, the Mayor’s Chief of Staff, Scott Wyman, left him a voicemail, which he shared with Local 10 News:
“I would like to talk to you about tonight because you’ve been played by a lot of people about this. We need to talk before you do anything permanent. Call me, please.”
Since then, Herbst’s attorney, Barbra Stern, sent a letter to the attorney representing Williams and Keechl, stating that the affidavits they submitted to the city included “false and inaccurate information rendering the challenge fraudulent.”
Stern asked Local 10 News “Why is the mayor’s office interjecting himself in Williams’ challenge and his decision to withdraw?”
“Does it rise to the level of election interference?’ which I believe it does,” she said.”
Their concern they say is that the mayor is supposed to be fair and impartial when it comes to an upcoming quasi-judicial hearing about the remaining residency qualification challenge.
“One has to wonder, what else is going on behind the scenes? Is this really about a residency requirement? Or is this about something else?” asked Local 10 Legal Analyst David Weinstein.
There is also the letter the mayor sent to Florida’s Attorney General asking for an advisory opinion on the issue without first consulting with the city attorney, a move Weinstein said the mayor could be making to gain legal cover for a decision he may have already made.
In an email, Boileau told Local 10 News “I did not have any knowledge that a request was being made to the attorney general until I was copied in on the transmittal email.”
In another email obtained by Local 10 News, the Mayor’s Chief of Staff told the Attorney General’s office the mayor was submitted a revised certification form saying the mayor “is seeking the advisory opinion alone.”
Former state and federal prosecutor David Weinstein reviewed that letter. His impressions were that it appears to telegraph that “the mayor has already made up his mind about how he is going to vote when this matter comes up before him” and may be seeing the AG’s opinion for legal cover “looking for some support for that decision from someone who renders legal opinions and then he can also rely upon it when there is an appeal. It could have been cleaner for the mayor to simply have addressed this in a more public and open forum.”
Herbst told Local 10 News that he believes this was an attempt to steal the election.
“My district is without representation right now and this is nothing less than an attempt to steal the election for somebody who won in a landslide, and I think it is just unconscionable.”
A city spokesperson says while Williams withdrew his affidavit, she is not aware of “any change in status of the challenge by Mr. Keechl.”
In Stern’s Nov. 17 letter, she added that “since Mr. Keechl is a member of the Florida Bar and an officer of the Court, he has an obligation to withdraw his Affidavit.”
Stern says the Mayor endorsed Keechl during the election.
A text message provided to Local 10 News, that we are told was sent during the election, reads: “It’s Mayor Dean Trantalis and I’m with Ken Keechl. He’s the best candidate to work with us to deal with the cost of living, manage growth, and move our community forward. If you love Fort Lauderdale like I do please remember Ken Keechl. We need Ken! Paid by Progress Fort Lauderdale.”
The Mayor’s Chief of Staff Scott Wyman said the mayor is not available today to discuss the text message, questions about the text and voicemail Williams told Local 10 News he received from Wyman the evening of November 18th, hours after Williams withdrew his challenge, or to address questions pertaining to the Mayor’s letter to the attorney general asking for an advisory opinion which the city attorney said was made without his knowledge.
Wyman said he was also not able to comment “without any authorization from the mayor.”
UPDATE
In the wake of this story, Local 10 News received an email exchange on Saturday between Fort Lauderdale City Attorney Alain E. Boileau and Keechl’s Attorney Jason B. Blank.
Blank wrote the following in an email to Boileau:
“Your interpretation of our City Charter is erroneous. There is no requirement that a resolution accepting the SOE’s election results occur prior to the acceptance of the new commissioners under Sec. 3.10. The argument is nonsensical, as previous commissions have necessarily accepted the election results for their own elections. As such, there will be a quorum to adjudicate your client’s allegations.
In response to Blank’s email, Boileau recommended that they do not hold the special quasi-judicial hearing and that Herbst is being recommended to be sworn in on Tuesday.
“Although Mr. Blank refuses to directly answer the question of whether Mr. Keechl will appear and submit himself for examination and cross-examination, it appears nonetheless clear from the attached correspondence.”
“Mr. Keechl has no personal knowledge of the matters raised in his affidavit, that Mr. Keechl will not, and apparently cannot, provide any evidence beyond his conclusory affidavit, and will not be available for examination or cross-examination,” he added.
According to the email, Boileau also wrote that Keechl will not be available to attend Tuesday’s challenge because he is currently overseas.
“Mr. Blank’s automatic email response states this morning states the following: “[b]e advised, I will be traveling internationally through Dec. 11. and will have only limited access to e-mail during that time.”
“Seemingly, Mr. Blank will also not be available or present on December 6. Nevertheless, with this posture Commissioner-Elect Herbst cannot be afforded the due process to which he is entitled and by law is the presumptive winner of the election, as certified by the SOE, and has no burden or duty to prove his entitlement without due process,” wrote Boileau.
“I would recommend foregoing any further action on the challenge submitted under Sec. 3.04, including the scheduled quasi-judicial proceeding, and proceed with the receipt of all Commissioners-Elect pursuant to Sec. 3.10 of the City Charter,” Boileau wrote.
“If Mr. Keechl and his counsel object, they have recourse in the Circuit Court and can proceed accordingly,” he added.
LEGAL ANALYSIS
Former state and federal prosecutor David Weinstein told Local 10 News that it appears the mayor has already made up his mind about his upcoming vote on Herbst.
“While the city’s charter makes the city commission the judge and jury over disputed city elections, it appears that the mayor is seeking outside advice on an issue that he must ultimately decide,” Weinstein told Local 10 News. “From the language of his request to the attorney general, it appears that he has already made his decision and is looking for confirmation of that analysis, which he can use to support his upcoming vote and rely upon in any appeals that will follow.”
Weinstein:
“Again, it seems unusual to me that in this particular instance, the person who is now going to be voting on the challenge would reach out to the people who have complained about or voiced an objection about the challenge. The proper place to do that would be at a hearing that takes place, not behind the scenes. The person who made the complaint is entitled to keep it in place or to withdraw it. If he’s withdrawn it, certainly the mayor can call this person as a witness at the public hearing and ask why it’s been withdrawn. It seems unusual and out of the ordinary that it would go through a back channel to have a discussion with someone who had originally filed the complaint.
“There are a couple of things that are going on here. This is a public hearing that is going to take place. There are certain laws in Florida that talk about open and in the sunshine and having discussions. Now, the person who’s complaining is not going to have a vote. So technically, the Florida open in the Sunshine Act wouldn’t apply. And I’m simply using that as an example of how we like, in Florida, our public officials to have discussions about matters in the open.
“But the optics and perceptions of the way that this is going to proceed forward need to be completely free from any even appearance of impropriety. And so by doing this behind the scenes, while people are entitled to speak to witnesses outside of normal channels, given all the attention that this has received, the fact that there is an interesting legal opinion that is going to be rendered one way or the other, it would have been cleaner for the mayor to simply have addressed this in a more public and open forum.
“And in everything that we’ve been talking about, and the behind the scenes back channel stuff that’s going on, something about it doesn’t quite smell right. And so, when you use the smell test, the question becomes, does this pass the smell test? Or does something about it just smell wrong?
“The issue that’s at the core of all this is when you apply for a Homestead exemption in the middle of a calendar year, when does that Homestead exemption take effect? Homestead exemptions take effect on January 1 of a calendar year. And once that time has passed, you can’t back date your Homestead exemption.
“So the Homestead exemption that was applied for isn’t going to happen until 2023. So if in fact, there was no Homestead exemption in place, and there was no declaration of Homestead that was effective for 2022, you can have your residency wherever you want. And so that’s what the crux of this issue is.
“And so again, I think what’s important to look at here is we’re looking at a Homestead exemption for 2023. In January of 2023, Mr. Herbst can withdraw his Homestead exemption for a piece of property that is outside the place he needs to reside in order to be a sitting commissioner, and then this is not an issue.
“So in some respect, this is all premature. And people have voted for someone who sat for an election and who qualified and had residency at the time the election took place, at the time he declared to be a candidate in the location where he was required to be. And so when we get to 2023, Homestead might be an issue, but it’s not really an issue right now. So that sort of muddies everything else that’s taking place here, as well.”