Miami, Fla. – Haydee Sera, a Partner with Weiss Serota Helfman Cole & Bierman, P.L. who focuses her practice on municipal representation, was elected to serve as Secretary of the Cuban American Bar Association (CABA). Sera’s one-year team began on Jan. 13, 2021.

Sera’s appointment as Secretary follows her December 2020 reelection to the organization’s Board of Directors for another two-year term. She was first elected to the board in 2018.

CABA was established in 1974 by lawyers of Cuban descent, with the mission to improve the legal profession through greater diversity and equality of opportunity throughout Florida. In 1984, it launched the CABA Pro Bono Project to assist the needs of indigent Spanish-speaking individuals who did not otherwise have access to Spanish-speaking lawyers who could assist them with legal matters. 

“It is a great honor to serve CABA and be trusted to take a leadership position on the board,” Sera said. “CABA is a highly regarded organization and I am thrilled to continue to work with the board and broader membership to see through its mission of equality for the legal and local communities.” 

Sera is a member of the firm’s Government Division and Municipal Land Use Practice Group, where she provides general representation to municipalities on a broad range of issues such as elections, ethics, procurement, public records, and land use and zoning. Prior to joining the firm, Sera was the Assistant Town Attorney for the Town of Miami Lakes, where she diligently served as counsel to the Town’s Planning and Zoning Board, Charter Revision Commission and advisory committees. She earned her law and bachelor’s degrees from the University of Miami. 

In addition to her involvement with CABA, Sera is a member of the Hispanic National Bar Association and the Miami Lakes Bar Association.  

Next month, Sera will be honored during South Florida Business & Wealth magazine’s first annual Prestigious Women Awards virtual event. In 2018, she was recognized as a Woman of Distinction by the Cultural Affairs Committee of the Town of Miami Lakes.

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The Prestigious Women Awards recognizes top leaders in the tri-county area who have created business success stories and provided leadership to women and the broader community. The awards are based on nominations by the public and SFBW research.

Honorees will also be recognized in an in-person awards ceremony in 2021.

To learn more about SFBW and the awards, click here.

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On April 2, 2020, the Governor issued Executive Order No. 20-92, amending Executive Order No. 20-91, in order to provide clarity as to the effect of Section 4 of Order 20-91. In addition to referring to Order 20-91 as an order “directing a statewide essential services and activities order,” Order 20-92 provided that Order 20-91 superseded “any conflicting official action or order issued by local officials in response to COVID-19.”

Despite the amendment, local governments continued to grapple with the uncertainty created by Order 20-91. The question is whether an Order is “conflicting.” In response to a question posed by the Mayor of the City of Weston, a municipality in Broward County represented by our Firm, on April 3, 2020, the Governor’s General Counsel further clarified local governments’ authority pursuant to Order 20-91, as amended by Order 20-92.

The General Counsel advised that Order 20-91 “only restricts individuals by limiting their movement, except when those individuals are participating in an essential service or activity. The Order enforces this by law enforcement with a second degree misdemeanor on the individual. Further, Section 4 of the Order only preempts to the extent a local authority seeks to add to the essential list in the Governor’s Order.” (emphasis added). Order 20-91 creates a process for state approval of local proposals for additional essential services or activities to be recognized.

The General Counsel further explained:

“The Governor’s Order does not do either of the following, and local authorities are not preempted in any way:

1. The Governor’s Order does not affect whether a local authority may close a business (or in other words, decide if a business in [sic] non-essential).  That local enforcement would presumably be directly on the business itself.
2. The Governor’s Order does not dictate whether additional social distancing or group gathering requirements can be placed on essential services or essential activities.  Local authorities can do so both on individuals and on businesses/organizations.”

The General Counsel concluded that local governments can exercise their authority to “close or restrict how any business/organization must comply with [local government] codes. The Governor’s Order does not give a business/organization any “right” to avoid your codes.” Weston City Attorney Jamie Cole also spoke with the General Counsel to confirm this interpretation. To view the General Counsel’s email response, click here.

Our Firm’s Government Division counsel are working with local governments to ensure compliance with the Governor’s Orders and determine what additional local emergency measures may be taken to further protect their community’s health, safety, and welfare. To discuss your local government’s compliance with the Governor’s Orders and the issuance of additional local emergency measures or orders, please contact a member of our Government Division.

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On April 1, Florida Governor Ron DeSantis issued Executive Order No. 20-91, providing for a statewide stay-at-home order. A copy of the Governor’s Order is available here. The Order, which takes effect April 3, 2020 at 12:01 a.m., creates many questions about which businesses and services are essential and what an essential activity is. We are here to assist you in implementing the Order and the various lists incorporated therein.

The Governor’s Order at Section 2(a) incorporates the United States Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency’s (CISA) recently issued “Essential Critical Infrastructure Workforce” advisory list. A copy of CISA’s “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response Version 2.0” is available here. CISA’s Guidance is extensive and we are analyzing it to help our clients understand what is an essential business or service under that list.

In addition, the Governor’s Order incorporates Miami-Dade County’s designation of essential services. Miami-Dade’s list of essential businesses and services have been set forth in a series of emergency orders, particularly Miami-Dade County Emergency Order 07-20, which has been amended three times to date. To assist our clients and the public with understanding what is deemed an essential service, we have consolidated the essential retail and commercial businesses that may remain open based on the emergency orders issued by Miami-Dade County. To view the consolidated Miami-Dade County list, click here.

We are actively monitoring the quickly evolving essential businesses and services list. If you are unsure whether a certain business or service is deemed essential, please contact a member of our Government Division.

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The Firm’s Government Division is actively monitoring the quickly evolving landscape affecting our government clients due to COVID-19/novel coronavirus. Emergency declarations and orders issued by the state, as well as various counties and municipalities can be found below, and our Firm’s guidance relating to COVID-19 can be found here. Please check back for additional information as it becomes available. In the meantime, should you have any questions or need additional guidance, please contact one of our Government Division attorneys —we are here to serve you.

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In light of the current public health emergency due to COVID-19, government and health officials are recommending that the public avoid any large public gatherings. It is possible that officials may recommend cancellation of all public gatherings. Notwithstanding the recommendation to restrict or cancel public gatherings, a local government’s governing body may still need to hold public meetings to address essential public business.

In anticipation of this possible scenario, and to avoid any uncertainty, on March 3, 2020, our firm requested that Governor DeSantis grant an exemption from Section 286.011, Fla. Stat., so that official acts may be taken during meetings where a quorum of the governing body is only telephonically or electronically present. As of the date of this memorandum, Governor DeSantis has not responded to our request; however, discussions with his office and other state officials regarding this important issue are ongoing. This memo may be updated or revised if we receive further guidance from the state, or based on other developments. At this time, the Florida Legislature continues to meet in person.

In light of the uncertainty regarding a governing body’s ability to meet at a public meeting, we are providing the following guidance to our municipal clients regarding the ability of a governing body to hold public meetings telephonically or electronically (“virtual public meetings”):

Sunshine Law Requirements.

The Florida Constitution requires that public meetings be “open and noticed to the public.” See Article I, Section 24(b) (the “Sunshine Law”). The Florida Legislature is empowered to provide by general law for an exemption of meetings from these requirements, if the law “states with specificity the public necessity justifying the exemption” and “is no broader than necessary to accomplish the stated purpose of the law.” See Article I, Section 24(c).

The Florida Legislature adopted Section 286.011, Fla. Stat., echoing the requirements of the Florida Constitution and requiring meetings to be “open to the public at all times” following the provision of reasonable notice, and requiring the keeping of minutes of such meetings. It has created limited exemptions from the Sunshine Law for meetings related to litigation, security, and collective bargaining. It has not adopted any law addressing meetings during emergencies. Virtual public meetings are not specifically authorized or prohibited by the Florida Constitution or the Florida Statutes, and no caselaw has addressed this issue.

However, the Florida Attorney General has repeatedly opined that in order to comply with Section 286.011, Fla. Stat., a local governing body must have a physical quorum present in order to hold a public meeting at which action may be taken. See, e.g., Attorney General Opinion 2010-34, August 25, 2010. These opinions, however, have been in a non-emergency context.

Restrictions on Public Gatherings

The recommendation to limit public gatherings was issued in response to a public health emergency and state of emergency declared by Governor DeSantis for the State of Florida (Executive Orders 20-51 and 20-52), as well as an emergency declared by both Miami-Dade and Broward Counties during the week of March 9, 2020. The Governor’s Executive Order 20-52 acknowledges that special duties and responsibilities placed on state, regional and local agencies in responding to the emergency may require them to suspend the application of the statutes, rules, ordinances and orders they administer. Section 4(D) of Executive Order 20-52 provides for political subdivisions within the State to “waive the procedures and formalities otherwise required . . . by law pertaining to:

1. Performance of public work and taking whatever prudent action is necessary to ensure the health, safety and welfare of the community;
2. Entering into contracts . . .;
3. Incurring obligations;
4. Employment of permanent and temporary workers;
5. Utilization of volunteer workers;
6. Rental of equipment;
7. Acquisition and distribution, with or without compensation, of supplies, materials and facilities; and
8. Appropriation and expenditure of public funds.”

The Executive Order thus authorizes a local government to take prudent action to ensure the health, safety, and welfare of the community, which could include holding virtual public meetings.

During this declared health emergency, compliance with the physical quorum and public attendance requirements could jeopardize the health of the governing body members and the general public. The declared emergency therefore impedes a governing body’s ability to meet the Attorney General’s guidance under the Sunshine Law. Literal compliance with both the health recommendations and the Attorney General Opinions could prevent the governing body from performing essential public business.

Recommendations For Substantial Compliance with the Sunshine Law During This Emergency

Local governments vary greatly in their population and scope, and a meeting of a small city commission might involve the gathering of only a few dozen persons while a meeting of a larger government might routinely draw more than 100 persons together. The circumstances of these governments will also vary; some governments may have active and documented cases of COVID-19 in or near their jurisdiction while others may not. Technological abilities vary as well. In short, different cities may make different choices in this emergency.

Some cities may desire to hold virtual public meetings in this emergency. In light of the Attorney General opinions and the purpose of the Sunshine Law, in order to conduct essential public business and meet the conflicting demands of this emergency, we believe that a governing body should be allowed to hold a virtual public meeting (with no members physically present) by: (1) properly noticing the meeting, (2) taking minutes, and (3) making the meeting open to the public through technological means that are made available to the public, such as by teleconference or online video-conference.

Matters to be discussed or decided at such a meeting should be limited to essential matters that are related to the public health, safety and welfare. Findings and a record should be made of the specific public necessity justifying the virtual public meeting.

The agenda items should be limited to those public necessities so that the meeting is, as indicated by Section 24(b) of the Florida Constitution, “no broader than necessary to accomplish the stated purpose” of having it as a virtual public meeting. At this time, we would also recommend that no land use or zoning matters requiring public hearings or quasi-judicial hearings should be handled in this manner. These recommended restrictions result in a narrowly tailored virtual public meeting that meets the intent of the Sunshine Law as fully as possible under the circumstances.

The governing body’s steps to substantially comply with the Sunshine Law’s requirements as stated above would allow for the public’s essential business to continue, and provide the public with reasonable, safe access to such a public meeting in conformance with the recommendation to avoid public gatherings.

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As local governments prepare for the effects of COVID-19, it is important to recognize some of the legal challenges and implications presented by the virus for our communities. Here are some questions and answers designed to help you spot the concerns and be prepared for the impacts. Please keep in mind that we are a resource as you navigate the novel issues during this public health emergency.

Question: What do the Governor’s Executive Order No. 20-51 establishing COVID-19 response protocol and directing a public health emergency and the State Surgeon General’s Declaration of Public Health Emergency mean for Florida’s local governments?

Answer: These orders provide procedures for responding to the emergency created by COVID-19. The Department of Health is the lead state agency coordinating emergency response activities among state agencies and local governments. See Section 381.0011(7), Florida Statutes. The public health emergency allows the State Surgeon General to take actions that are necessary to protect the public health. See Section 381.00315, Florida Statutes. These actions may include declaring, enforcing, modifying, or abolishing the isolation and quarantine of persons, animals, and premises.

Question: What do these orders mean for local law enforcement agencies?

Answer: Any Department of Health order issued pursuant to Section 381.00315(4), Florida Statutes, is immediately enforceable by a law enforcement officer. See Section 381.00315(4), Florida Statutes.

Question: Do these orders also bind other local officials?

Answer: Yes. Appropriate city officials also have a duty to assist the Department of Health and its agents with enforcement. See Section 381.0012, Florida Statutes.

Question: What about the impact of this emergency on our municipal employees?

Answer: Taking a proactive approach and keeping an open dialogue with employees can help municipalities to manage this stressful period effectively. Here are our top readiness tips for coping with the creeping cloud of COVID-19:

• Communicate early and often. Send internal communications to the workforce on a regular basis and remind employees that their health and safety is of utmost importance. Internal communications may include an explanation of the signs and symptoms of COVID-19, the latest updates on COVID-19 from the Center for Disease Control (“CDC”) and tips from the CDC on preventing the spread of germs and bacteria that could lead to other illnesses, such as the flu or the common cold. If your healthcare program includes a nurse hotline, doctor-on-demand, and/or an employee assistance program, now is a good time to reiterate the availability of these resources.
• Create a healthy environment. Although it may sound obvious, municipalities should be taking necessary measures to promote a sanitary work environment. Encourage hand washing (for at least 20 seconds), provide plenty of soap and hand sanitizer, and ensure that your cleaning crew is engaged and well stocked.
• Promote remote work and/or alternate work arrangements. As the probability increases that your employees may need to stay home, it is important to ensure that the municipality can remain operational. Develop methods of operating the critical components of the municipality on a remote basis if possible, and ensure that the methods that you currently have in place are up-to-date and functional. If you operate in a unionized environment, familiarize yourself with the existing rights established under any applicable collective bargaining agreement(s) (or past-practices) that might affect the ability of bargaining unit employees to work remotely. All requests received from personnel to work remotely should be treated in a consistent and non-discriminatory manner, while keeping in mind the particular employee’s request; any known or disclosed medical condition(s); your established sick leave policies and any applicable rights created under a bargaining agreement(s); and the employee’s position and job responsibilities.
• Disclose exposure. If an employee discovers that they have been exposed to someone who has been diagnosed with COVID-19, they should call ahead to human resources (before coming to city hall) to report this information. However, it is important to maintain the confidentiality of employees’ health-related information. HIPAA remains in effect, notwithstanding any health crisis.
• Sick employees should stay home. To the extent your employees feel ill, they should err on the side of not reporting to work where they could potentially expose others. Remind employees of your established procedures for calling out sick. If an employee is unable to reach his/her initial contact, they need to be aware of the next step in communicating their out-of-work status to human resources.
• Travel precautions. If your employees are required to travel to locations where there have been confirmed cases of COVID-19, you should consider whether such travel is necessary and/or take steps to provide additional support to such employees.
• Plan ahead for less-likely scenarios. Although it may seem unlikely, consider the possibility of temporary closure of the workplace, and prepare an advance plan for the implementation of corresponding procedures.

Question: Are the requirements of the Sunshine Law affected by this emergency?

Answer: Section 286.011, Florida Statutes, requires that all municipal governing body meetings be open to the public. The Florida Attorney General’s Office has consistently interpreted this statute to require the physical presence of a quorum of the members of the local governing board. See Florida AGOs 92-44, 98-28 and 2003-41. In-person local governing board meetings may conflict with future directives from Federal, State or County health officials and could potentially promote further community spread of COVID-19. In light of this, our Firm has requested that the Governor order a limited emergency exemption from Section 286.011(1), Florida Statutes for those communities directly affected by COVID-19, so that a virtual meeting can be held via a teleconference or webinar that is open to public. Click here to view our letter sent to Governor DeSantis.

Question: What about the right to public comment at public meetings?

Answer: Section 286.0114, Florida Statutes, governs the right of the public to be heard at public meetings, and has a limited exception to the right to public comment in certain emergency situations.

Question: How might this emergency affect parks and public facilities?

Answer: Local governments should plan for potential closures of public facilities, parks, golf courses, and beaches. Issues include when to implement closures, how to enforce them, and how to provide notice to the public of the closures – and of the subsequent re-openings. It may be that special events will need to be canceled; accordingly, permits, licenses and rental agreements should be reviewed and any cancellation clauses followed.

Question: What are some recommendations for how to handle mass gatherings in this emergency?

Answer: The World Health Organization’s key planning recommendations for mass gatherings in the context of the current COVID-19 outbreak are at this link. The CDC Guidance on Mass Gatherings or Large Community Events is at this link.

Question: Could the emergency affect the enforceability of government contracts?

Answer: The relevant contractual clauses, such as force majeure, should be interpreted in consultation with the municipal attorney. Particularly important are contracted essential services such as waste management, recycling, building department functions, planning departments, transit and micro-transit services, landscape and general maintenance.

Question: Where can I look for additional information?

Answer: Here are some links to various sources of information about COVID-19 and Florida’s response to it.

1. World Health Organization
2. Centers for Disease Control and Prevention (CDC)
3. CDC Resources for First Responders
4. Florida Department of Health
5. Florida’s Response to Emerging Infectious Disease
6. Florida League of Cities

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Weiss Serota Helfman Cole & Bierman, P.L. has announced four new partners at the law firm. Attorneys Jose Arango, Brooke Ehrlich, Michael Kantor and Haydee Sera earned the promotions at the end of 2019.

Part of the firm’s Government Division, Arango is based in the Coral Gables office. He focuses on code enforcement, building code issues, and general government law. Arango also has extensive experience drafting legislation and amendments to municipal codes, authoring legal opinions for municipalities and drafting municipal contracts including land use and professional services agreements.

Ehrlich is based in the firm’s Fort Lauderdale office and is part of its Labor and Employment Law practice. She specializes in employment litigation, labor law, and commercial litigation. Ehrlich advises local governments and corporate clients with respect to employee discipline, retention and termination, employment manuals and policies, and contract interpretation.

Kantor is also based in the Fort Lauderdale office and focuses on Labor and Employment matters. In that field, he handles discrimination charges and lawsuits brought against public and private entities pursuant to state and federal anti-discrimination and wage and hour laws. Kantor also litigates unfair competition cases involving enforcement of non-compete agreements and misappropriation of trade secrets.

Sera is an attorney in the firm’s Government Division practice and based in the Coral Gables office. She provides general representation to municipalities on a broad range of issues such as elections, ethics, public records and Sunshine Law. As counsel to local municipalities, Sera drafts and reviews proposed legislation, resolutions and agreements on a variety of matters.

“These four attorneys are passionate about serving their clients and broader communities,” firm Managing Director Mitchell Burnstein said. “We greatly appreciate their dedication to the firm and are thrilled to name them as new partners.”

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