DeSantis said no more virtual meetings. Some South Florida cities are doing it anyway

More than a half-dozen cities in South Florida have continued to hold government meetings entirely online as COVID-19 cases surge, even after Gov. Ron DeSantis let his executive order allowing virtual meetings expire Nov. 1 and suggested they were no longer permitted.

A handful of municipalities in Northeast Miami-Dade, including Aventura, Bal Harbour Village, Golden Beach, Indian Creek Village and Surfside, have issued emergency orders authorizing the continuation of virtual meetings. Several of those cities have seen officials and staff test positive for the virus in recent weeks.

“We have had employees test positive. We have a few employees that are very high risk,” said Golden Beach Mayor Glenn Singer, adding that the town council meets in small, enclosed chambers. “It would have definitely been risky.”

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In Aventura, the city commission held two in-person meetings in October. “We felt we needed to lead by example,” said Mayor Enid Weisman, pointing to Miami-Dade schools returning to in-person learning around that time. But the calculus changed in early November when an elected official tested positive for COVID-19, Weisman said.

The city worked with its attorney to draft an emergency order allowing a return to virtual meetings in November.

“I’m not sure what we’re gonna do about our next meeting” in January, Weisman said. The Aventura commission is in recess for December.

Many cities in Miami-Dade have adopted hybrid meeting models to try to comply with state law. Miami Beach, for example, moved its meetings to the city’s convention center, where commissioners are separated by drapes and piping and communicate with each other via teleconference. That way, there’s an in-person quorum but still plenty of social distancing.

As for public participation, Miami Beach residents can call in through Zoom or via a computer set up in a separate room at the convention center.

But it’s not that simple for smaller cities with cramped commission chambers and limited alternatives.

“Not everybody has a convention center to go to,” said Susan Trevarthen, an attorney with the law firm Weiss Serota Helfman Cole & Bierman who represents Bal Harbour Village.

Weiss Serota says cities can buck governor’s wishes

The five Miami-Dade cities that are still meeting virtually are all represented by attorneys from Weiss Serota, the same law firm that told local governments in March they could legally transition from in-person to virtual meetings even in the absence of guidance from DeSantis. The firm serves as in-house counsel for more than a dozen municipalities across Florida.

Now, with coronavirus cases and positivity rates spiking for a third time this year, Weiss Serota lawyers are again telling local leaders they’re within their rights to conduct city business online.

The attorneys have helped cities craft new emergency orders that explain why meeting virtually is legal and necessary for public health. The orders cite language in a March 19 legal opinion issued by Florida Attorney General Ashley Moody, which said an in-person quorum is required for local government meetings unless “a statute permits a quorum to be present by means other than in person, or the in-person requirement for constituting a quorum is lawfully suspended during the state of emergency.”

With Moody’s opinion in hand, DeSantis issued his order suspending the in-person quorum requirement statewide on March 20.

Weiss Serota lawyers are now pointing to the phrase “lawfully suspended” to argue that local governments can take that step on their own, without needing approval from the state.

“While [DeSantis] has declined to extend his order, we’re advising our clients that the local state of emergency can be used to accomplish that,” Trevarthen told the Miami Herald. “What we’re saying in March and now is that this is not yet a settled question.”

Trevarthen acknowledged some risk for cities that choose to keep meeting virtually. The state or another party could, theoretically, try to claim that legislation approved without an in-person quorum isn’t valid and mount a challenge in court.

That risk is bigger for critical votes like passing a municipal millage rate, Trevarthen said. But several cities have decided that, to conduct most city business, the risk is worth it to potentially prevent the spread of COVID-19.

“These cities that are doing this, I think they have genuine concerns,” she said.

Several South Florida cities outside Miami-Dade have continued to meet virtually, including Lauderdale-by-the-Sea in Broward County, and Boca Raton, Boynton Beach and Delray Beach in Palm Beach County.

Delray Beach had been meeting in person since October, but its commission passed a resolution Nov. 17 to return to virtual meetings, following in the footsteps of Boca Raton and Boynton Beach.

None of those three cities in Palm Beach County are represented by Weiss Serota. Delray Beach and Boca Raton have attorneys on staff, while Boynton is represented by James Cherof of Goren Cherof Doody & Ezrol.

A spokesman for Moody, Whitney Ray, said the Attorney General’s Office hasn’t issued any opinions or guidance to municipalities about whether they can keep meeting virtually.

DeSantis’ spokesman, Fred Piccolo Jr., did not respond to a request for comment.

In late October, as DeSantis prepared to let his executive order expire, his office said the decision meant in-person meetings would once again be required under state law.

“As Florida continues in Phase 3 and millions of Floridians go to work and school every day, it is time for local government officials to safely return to meeting in person, where Florida law requires, to conduct official business in the sunshine on behalf of their constituents,” his office told WFTV in a statement.

Local leaders in Miami-Dade, including newly elected County Mayor Daniella Levine Cava, have urged DeSantis to give power back to local governments to enforce COVID-related safety measures, including to allow virtual meetings. In late September, DeSantis also forced Miami-Dade to reopen bars and nightclubs and stripped local authorities of the power to collect fines on tickets tied to COVID orders.

County lobbyist Ron Book said in mid-November that he spoke to the governor about Miami-Dade’s virtual meeting request, and that DeSantis was “firm” in rejecting it.

Levine Cava tested positive for COVID-19 on Nov. 30, linking her diagnosis to her husband, a doctor, who she believes contracted the virus from exposure to a patient. She participated in a subsequent county commission meeting virtually while other commissioners attended in person.

Coral Gables Mayor Raúl Valdes-Fauli announced Monday that he, too, tested positive for COVID. Like Levine Cava, he attended a meeting virtually Tuesday morning while other officials were inside the commission chambers.

Meeting in person after outbreak at city hall

The governor’s decision has led most cities to return to in-person meetings, including some under potentially risky circumstances. In West Miami, the small city hall building closed to the public last Wednesday after seven out of 10 employees in the office staff, including City Manager Yolanda Aguilar, tested positive for COVID-19.

This Wednesday, the city plans to hold an in-person commission meeting at city hall after its attorney, Jose Villalobos of the Akerman law firm, issued an opinion Friday saying state law requires a physical quorum — offering a different interpretation of the Attorney General opinion than Weiss Serota has offered its cities.

Aguilar said city commissioners weren’t among those who tested positive, and that city staff will attend the meeting via Zoom. Residents can attend in person, she said, but protective glass the city ordered for the commission chambers won’t arrive until later this month. Twenty people at a time will be allowed in the chambers.

The manager said Monday that she wasn’t worried about whether commissioners could have been exposed to staff who tested positive. The commissioners rarely come to city hall, she said, and when they do, they meet with staff at a “nice-size table” and sit “far apart from each other.”

For Wednesday’s meeting, she said, “we’re counting on a full commission.”