(copy of email to Cooper City, City Manager, Bruce Loucks)
On tonight's Agenda is an item, "Frank DiPaolo will
present Finance Director Horacio Montes de Oca with a Certificate of
Achievement for Excellence in Financial Reporting". While I don't know
Mr. Montes de Oca, or even know very much about him, the presentation at this
time of an award for excellence in "Financial Reporting" seems quite
irregular.
During the last Commission meeting, the City Attorney presented his opinion on whether Resolutions create legally binding obligations. That is, whether Resolutions can create obligations in the nature of a contractual relationship. Because the City Attorney confidently advised that Resolutions can bind parties in the nature of an enforceable contractual relationship, I would think considerable questions now exist regarding the the nature of the parameters regarding the CCO-City relationship as set out in the 2003 and 2004 Resolutions. As you are aware, an important part of the 2003 and 2004 Resolutions addressed financial obligations by and between the Optimists and the City.
On the question of any financial obligations to the City from the Optimists, prior to Mr. Wolpin's pronouncement it was my belief the Optimists did not possess anything akin to an enforceable financial obligation in favor of Cooper City. However, I can only look at the problem as a layman, not as an attorney. In attempting to incorporate Mr. Wolpin's analysis into the present realities, I see several problems in a decision to present Mr. Montes de Oca with a "Certificate of Achievement".
(1) No monies were collected by the City from the Optimists from at least January 1, 2007 through around August of 2012. If the 2003 and 2004 Resolutions represent enforceable agreements, the time period just given would result in unpaid fees aggregating as much as (approx.) $250,000 due to the City;
(2) I have been advised by Mr. Montes de Oca, through you and Ms. Poling, the City is unable to account (i.e., provide information) for the receipt of any fees from the CCO prior to January 1, 2007. I have asked for clarification on this issue, but received none. The bottom line appears to be that precisely when the CCO stopped paying nonresident fees over to the City is an open question. Because when the CCO ceased making payments contemplated under the 2003 and 2004 Resolutions is unknown, the amount of unpaid nonresident fees may be greater than $250,000;
(3) Despite the existence of the 2003 and 2004 Resolutions, public records indicate no attempt by the City to ever enforce the payments contemplated in the 2003 and 2004 Resolutions. Public Records produced no invoices, demand letters, letters requesting payments, relevant emails, etc. from the City to the Optimists. In addition, Public Records indicate that no special account into which nonresident fees were deposited exists, or existed, even though such an account was contemplated by the 2003 and 2004 Resolutions;
(4) Despite the legal opinion presented by the City Attorney, aside from the Resolutions there is nothing in the Public Records evincing any intent on the part of the City to enforce the obligation of the Optimists to pay to the City all nonresident fees collected from participants in CCO leagues.
I am not entirely sure what to make of the above. Particularly in light of the City Attorney suggesting the possibility the 2003 and 2004 Resolutions could represent an enforceable legal obligation. Setting aside any legal analysis best left to qualified counsel, the facts so far discovered via Public Record Requests suggest financial mismanagement on the part of the City. A deal was worked out with the Optimists for nonresident fees to be paid over to the City. For obvious reasons, this is what one would anticipate happening to the nonresident fees. Does anyone doubt that nonresidents paying the extra money all believed the extra amount would flow to the City to assist in deferring the expense of City taxpayers maintaining facilities for use by nonresidents? For what other purpose would a nonresident fee be imposed?
I have assiduously sought out the reason(s) why and when payment to the City of nonresident fees ceased. No answers have been provided. Until there is a clear explanation by the City regarding nonresident fees does the Commission actually believe a, Certificate of Achievement for Excellence in Financial Reporting should be presented to Mr. Montes de Oca? The situation is so bizarre and provocative it adds to my suspicion that in order to deflect attention from any allegations of financial mismanagement, the City is prepared to accuse the Optimists of failing to make payments pursuant to an enforceable legal obligation (i.e., the 2003/2004 Resolutions).
The basic, underlying fact set forth herein about nonresident fees not paid/collected is not in dispute. Frankly, with the open questions associated with what happened, or should have happened regarding the nonresident fees, this Commission presiding over this type of ceremony at this time gives off an odor of possible corruption. Until the outstanding financial questions are truthfully and credibly answered, the planned Certificate of Achievement should be delayed. In my opinion, the provocative nature of the ceremony's timing will otherwise work to frame certain questions about the character, judgment and motivations of yourself, members of the Commission, and the Commission's various fellow travelers.
During the last Commission meeting, the City Attorney presented his opinion on whether Resolutions create legally binding obligations. That is, whether Resolutions can create obligations in the nature of a contractual relationship. Because the City Attorney confidently advised that Resolutions can bind parties in the nature of an enforceable contractual relationship, I would think considerable questions now exist regarding the the nature of the parameters regarding the CCO-City relationship as set out in the 2003 and 2004 Resolutions. As you are aware, an important part of the 2003 and 2004 Resolutions addressed financial obligations by and between the Optimists and the City.
On the question of any financial obligations to the City from the Optimists, prior to Mr. Wolpin's pronouncement it was my belief the Optimists did not possess anything akin to an enforceable financial obligation in favor of Cooper City. However, I can only look at the problem as a layman, not as an attorney. In attempting to incorporate Mr. Wolpin's analysis into the present realities, I see several problems in a decision to present Mr. Montes de Oca with a "Certificate of Achievement".
(1) No monies were collected by the City from the Optimists from at least January 1, 2007 through around August of 2012. If the 2003 and 2004 Resolutions represent enforceable agreements, the time period just given would result in unpaid fees aggregating as much as (approx.) $250,000 due to the City;
(2) I have been advised by Mr. Montes de Oca, through you and Ms. Poling, the City is unable to account (i.e., provide information) for the receipt of any fees from the CCO prior to January 1, 2007. I have asked for clarification on this issue, but received none. The bottom line appears to be that precisely when the CCO stopped paying nonresident fees over to the City is an open question. Because when the CCO ceased making payments contemplated under the 2003 and 2004 Resolutions is unknown, the amount of unpaid nonresident fees may be greater than $250,000;
(3) Despite the existence of the 2003 and 2004 Resolutions, public records indicate no attempt by the City to ever enforce the payments contemplated in the 2003 and 2004 Resolutions. Public Records produced no invoices, demand letters, letters requesting payments, relevant emails, etc. from the City to the Optimists. In addition, Public Records indicate that no special account into which nonresident fees were deposited exists, or existed, even though such an account was contemplated by the 2003 and 2004 Resolutions;
(4) Despite the legal opinion presented by the City Attorney, aside from the Resolutions there is nothing in the Public Records evincing any intent on the part of the City to enforce the obligation of the Optimists to pay to the City all nonresident fees collected from participants in CCO leagues.
I am not entirely sure what to make of the above. Particularly in light of the City Attorney suggesting the possibility the 2003 and 2004 Resolutions could represent an enforceable legal obligation. Setting aside any legal analysis best left to qualified counsel, the facts so far discovered via Public Record Requests suggest financial mismanagement on the part of the City. A deal was worked out with the Optimists for nonresident fees to be paid over to the City. For obvious reasons, this is what one would anticipate happening to the nonresident fees. Does anyone doubt that nonresidents paying the extra money all believed the extra amount would flow to the City to assist in deferring the expense of City taxpayers maintaining facilities for use by nonresidents? For what other purpose would a nonresident fee be imposed?
I have assiduously sought out the reason(s) why and when payment to the City of nonresident fees ceased. No answers have been provided. Until there is a clear explanation by the City regarding nonresident fees does the Commission actually believe a, Certificate of Achievement for Excellence in Financial Reporting should be presented to Mr. Montes de Oca? The situation is so bizarre and provocative it adds to my suspicion that in order to deflect attention from any allegations of financial mismanagement, the City is prepared to accuse the Optimists of failing to make payments pursuant to an enforceable legal obligation (i.e., the 2003/2004 Resolutions).
The basic, underlying fact set forth herein about nonresident fees not paid/collected is not in dispute. Frankly, with the open questions associated with what happened, or should have happened regarding the nonresident fees, this Commission presiding over this type of ceremony at this time gives off an odor of possible corruption. Until the outstanding financial questions are truthfully and credibly answered, the planned Certificate of Achievement should be delayed. In my opinion, the provocative nature of the ceremony's timing will otherwise work to frame certain questions about the character, judgment and motivations of yourself, members of the Commission, and the Commission's various fellow travelers.
