It is akin to a question from a law school ethics exam: If the American Civil Liberties Union works to defeat a referendum to repeal Miami-Dade County’s gay rights amendment, should it simultaneously represent a vocal supporter of the repeal effort?
Over the summer, during the fight over the rights ordinance, the president of the Greater Miami Chapter of the ACLU, Lida Rodriguez-Taseff, decided to do both concurrently.
While the ACLU deployed a full-time paid staff member to the streets of Miami’s black neighborhoods to get out the vote against repeal, the 82-year old public interest group represented the Rev. Willie Sims, a county worker and black minister who publicly advocated repeal.
“Historically, since the 1950s certain nongovernmental public interest organizations like the ACLU and the NAACP encountered internal tensions in their multiple roles as litigants, legislative lobbyists and political organizers,” said professor Anthony V. Alfieri, director of the University of Miami’s Center for Ethics and Public Service.
“The issue is not so much whether this quasi-concurrent representation presents what we would describe as a direct adversity conflict, the issue goes to whether the ACLU’s dual role here will materially limit its ability to discharge its legal and political responsibilities,” said Alfieri.
Rodriguez-Taseff, a partner at Duane Morris in Miami and chair of the local chapter since June 2001, insists the ACLU was not conflicted. “It was the height of consistency. We are against any sort of discrimination whether we like the speech or not,” she said.
While no one is complaining that the ACLU had a legal conflict, the political fall-out from the ACLU’s dual action is still being felt.
As part of representing Sims who favored repeal, Rodriguez-Taseff is now flinging serious allegations at Jorge Mursuli, a former executive director of gay rights group Save Dade and current Florida executive director of the People for the American Way, a group that fought side by side with the ACLU in the referendum battle. The allegation, which Mursuli denies, is that he attempted to silence Sims because the county worker and minister advocated repeal.
There are also questions as to whether the ACLU and People for the American Way, a liberal group that is often a staunch ACLU ally, will be able to effectively work together in the future in Miami-Dade.
And the case raises ethical questions about when a client should be taken on and how far a county can go when disciplining an employee for public comments.
The stakes are high. Because Miami-Dade voters narrowly defeated the repeal effort 53 percent to 47 percent, it is likely conservative religious groups that fought to have the repeal question placed on the ballot will do so again in future elections. That would place a premium on cooperation between anti-repeal groups like the ACLU and People for the American Way.
When recently asked if the dispute between the two public interest groups will harm joint efforts in the future, Mursuli, who is also a member of the county’s Community Relations Board, paused and then said solemnly, “I hope not.”
Rodriguez-Taseff dismissed any concern about harming relations with a traditional ally, saying, “The ACLU has no interest in covering up for gay people who screwed up.”
She was referring to Mursuli. Rodriguez-Taseff contends that he threatened to get Sims, a Community Relations Board staff member, fired if the minister did not stop vocally supporting repeal. Mursuli adamantly denies the charges and said he is puzzled as to why Rodriguez-Taseff is making allegations against him.
The story dates back to Aug. 20 when Sims, director of special projects and crisis response at the CRB, received a memorandum from his supervisor, Dr. Larry Capp, executive director of the Office of Community Relations. The memo warned him for failing to adhere to county and office policies regarding the media. Rodriguez-Taseff alleges pressure from Mursuli inspired the letter. Capp, who could not be reached for comment by deadline, has denied the allegation in a previous statement to the press.
No stranger to controversy, Sims has been suspended twice by Miami-Dade County, his employer, over his public comments. One case went to the 11th U.S. Circuit Court of Appeals.
Sims, who is also president of the African American Council of Christian Clergy, a group that allied itself with repeal proponents, had been quoted in The Miami Herald and Miami New Times on the referendum. In his letter, Capp admonished Sims for giving the interviews “regarding county business” without prior authorization from a superior and for using profanity. (Sims was quoted as saying “bullshit” in the New Times story.) The letter was placed in Sims’ personnel file.
Started in 1963, the 26-member CRB has the dual mandate of fostering harmonious relations — be it race, religious, ethnic, cultural — among Miami-Dade’s many diverse communities. It is supposed to serve as a mediating, cooling presence during times of crisis. It falls to Sims, as director of crisis response, to sooth hot tempers.
The government board did not take a position on the gay rights amendment but did adopt a resolution condemning discrimination of all kinds, which many interpreted as an implicit vote against repeal.
“Your behavior reflects negatively on you and on this office,” wrote Capp, who warned in the letter that disciplinary action could result if he used further profanity in public. “All of the inappropriate behavior that you display adversely impacts your effectiveness in your job.”
But Rodriguez-Taseff decided Sims was being unfairly muzzled. She offered the ACLU’s services. He accepted.
The ACLU’s aim, said Rodriguez-Taseff, is to have the letter of reprimand removed from Sims’ file and what she termed the “gag order” lifted.
On Sept. 4, she wrote a letter to Capp demanding that the letter be rescinded. On Sept. 5, according to Rodriguez-Taseff, she spoke with Capp by telephone and argued that Sims could speak in his individual capacity on his own time. She said Capp promised the letter would be removed and Sims, who switched positions just before the election and opposed repeal, could speak freely.
Rodriguez-Taseff said, however, that she has not checked to see whether the letter has actually been removed from Sims’ file. The Miami Daily Business Review could not confirm whether the letter has been removed.
Whether any “gag order” has been lifted, Sims is still hewing close to the boundaries set down by Capp in the Aug. 20 letter. When contacted, Sims declined comment, saying, “I don’t care to discuss it, I’m on county time.”
The specter of the ACLU, long known for defending unpopular clients like Nazis and members of the Ku Klux Klan, being on both sides of the fence at the same time has caught the attention of some.
“Having been a member of the ACLU, it is highly suspect to me why they are representing him,” said Mursuli.
While several legal experts interviewed by the Review suggested the ACLU had no conflict in the ordinance fight, some said it is important to maintain clear lines of demarcation.
“There is no true legal conflict, but it is better to stay away from situations like this if you can,” said David L. Deehl, a partner with Deehl & Carson in Coral Gables, Fla., and member of the Professional Ethics Committee of the Florida Bar. “Client confidences are the key and that’s why sometimes you want to have separate lawyers.”
Even Rodriguez-Taseff admits that there are limits on whom and when a lawyer may represent a client.
“Willie Sims could have taken that letter [to the media]. If he had gotten a lot of attention — for example, news coverage about him being silenced by the county — we probably would have had to get him another lawyer,” said Rodriguez-Taseff, who added that there was no news coverage of the letter in August. “If representing him undermines the other issue, we must get someone else.”
“We got pretty close to the line,” Rodriguez-Taseff acknowledged of the Sims representation, “but no one accused us of having a conflict.”
In representing Sims, Rodriguez-Taseff said, the ACLU acted principally behind the scenes. Indeed, she said, because of the ACLU’s involvement with Sims, in the waning days of the campaign Sims changed his view and publicly opposed repeal.
“Not only do we not regret representing Rev. Sims but it is precisely because of our representation of him that Sims had exposure to our thoughts and eventually had a change of heart,” said Howard Simon, the Florida statewide executive director of the ACLU.
Heddy Pena, co-chair of Save Dade, which worked with the ACLU and People for the American Way against repeal, said she has no problem with the ACLU’s representation of Sims.
“The ACLU often finds themselves on both sides of the issue. They’re going to protect everyone’s freedom of speech,” said Pena.
Indeed, according to Rodriguez-Taseff, the ACLU played a dual role in 2000 when it challenged Miami-Dade’s Cuba Ordinance opening the way for people to bring musical acts from Cuba to Miami-Dade County while, on the other hand, defending people who wanted to protest the bringing of Cuban acts.
The controversial ordinance forbade companies doing business with Miami-Dade County to deal with Cuba. It caused Miami to lose the Latin Grammy Awards to Los Angeles. The ordinance was wiped out by a 2000 U.S. Supreme Court decision that the federal government has the sole right to dictate foreign policy.
Bruce Rogow, a veteran attorney in Fort Lauderdale, Fla., and a law professor at Nova Southeastern University’s law school who has represented clients on behalf of the ACLU, said that representing Sims while advocating against repeal was the ACLU at its best.
“It’s a tribute to their ability to see the First Amendment as it should be seen and to defend to the death one’s right to disagree with the ACLU’s own position,” Rogow said.
But such a position can make for strained relations between bedfellows. Currently, the ACLU, Save Dade and the People for the American Way are part of the Miami-Dade Election Reform Coalition. A group that meets weekly to get feedback from community members and make suggestions to the county, Pena said that it is running smoothly despite Rodriguez-Taseff’s allegations against Mursuli.
“No one has pulled out of the coalition and the organizations are still getting along,” said Pena.
Perhaps mindful of the importance that the groups work together, Pena is staying neutral and hopes the dispute will be resolved.
“I like Lida and I like Jorge. They are just both vocal extroverts,” said Pena. “I don’t like to see my friends in conflict.”
Meanwhile, the county appears to be on solid legal footing in reprimanding Sims for his public comments.
Ten years ago the county suspended Sims for three days after he was quoted in The Miami Herald as saying he felt like a “foreigner in my own land” and was “frustrated at having to speak Spanish in Miami, especially in restaurants.”
According to the article, Sims proposed boycotting Hispanic establishments. After the suspension, Sims sued the county on the grounds that he was unlawfully suspended for exercising his First Amendment rights. Sims argued that his comments were made from the pulpit as a minister, not as a county employee.
But the 11th U.S. Circuit Court of Appeals rejected his argument.
“It is clear that the First Amendment does not provide a right to continued government employment in a capacity that is inconsistent with, and undermined by, one’s off-duty expressive conduct,” wrote a three-judge panel that included a dissenting opinion. “Stated more simply, one who cheers for the robbers has no right to ride with the police.”