HomeMy Public PortalAboutLTC 129-2022 Councilman Albaum Request for Distribution of CorrespondenceOFFICE OF THE VILLAGE MANAGER
July 11, 2022
Mr. Mitchell J. Burnstein, Esq.
Firm Managing Director
Weiss Serota Helfman Cole & Bierman
200 East Broward Boulevard
Suite 200
Fort Lauderdale, Florida 33301
Dear Mr. Burnstein and Mr. Bierman:
Mr. Mitchell A. Bierman, Esq.
Managing Partner
Weiss Serota Helfman Cole & Bierman
2800 Ponce de Leon Boulevard
Suite 1200
Coral Gables, Florida 33134
We the undersigned are residents of the Town of Surfside'1 and we are writing to draw your
attention to what we believe to be professional misconduct and anti-LGBTQ politicking by your
colleague, Lillian M. Arango, in her role as Town Attorney.
This matter requires your urgent attention. The agenda for the July 12 meeting of our Town
Commission includes discussion of a memorandum that is based largely on Ms. Arango's
mistaken legal advice (see section 11.4 below) and on her unsupported and misleading claims
about the Town's past policies (see section 11.6, below.) Your failure to rescind or to correct
Ms. Arango's statements risks further, and perhaps irreparable, damage to her client.
Our concerns center on an e-mail that Ms. Arango sent on May 3, 2022, to Surfside's Mayor,
Town Manager, and Assistant Town Manager.' In that e-mail, which has been reported in the
Miami Herald,' Ms. Arango suggested to these officials that, if Surfside were to fly the LGBTQ
Pride flag in June 2022 (as the Town had done in 2021) then the Town might be legally
required, under the U.S. Supreme Court's recent decision in Shurtleff v. Boston, to "allow other
flags." Surfside's Mayor, Shlomo Danzinger, took Ms. Arango's advice and ran with it publicly,
telling the Herald that flying the Pride flag might require the Town to fly "a black cross or
swastika" or the flags of "Satanic cults."4
1 Gerardo Vildostegui is a graduate of Yale Law School and a legal scholar with expertise in constitutional law; he is
not a member of any state bar.
Jennifer Hill is a nonprofit lawyer, an adjunct professor of law, and co-editor of a textbook on legal advocacy.
Eliana Salzhauer is a graduate of the University of Virginia School of Law, a member of the NY State Bar since 1998,
and a former Assistant District Attorney in Queens County, New York. While she no longer practices law, she has
been working as a journalist and investigative producer on legal and related issues for over 20 years. She is not a
member of the FL Bar, nor does she currently practice law. She is a former Town of Surfside Commissioner (2096-
2022) and a community activist since 2006. 2020
2 Ms. Arango's e-mail of May 3 accompanies this letter as Exhibit A.
3 Martin Vassolo, "Surfside Won't Raise a Pride Flag This Year. Mayor Concerned Satanists May Ask Next," Miami
Herald, June 15, 2022. Available at: https://www.miamiherald.com/news/local/community/miami-
dade/article262528947.html
4 Id.
As we shall explain further in section 11.4 of this letter, Ms. Arango's e -mail —which, apparently,
she sent of her own initiative and not in response to any inquiry by a public official —involved a
fundamental and inexcusable misunderstanding of the Shurtleff decision. Shurtleff was never
relevant to Surfside because Surfside's raising of the Pride flag in 2021 was an act of the Town,
and therefore government speech. Ms. Arango even acknowledged in her e-mail that the flag -
raising was a government act, writing that "the Town raised the pride flag" in 2021.5 Ms.
Arango's own characterization of the facts of 2021 should have led her to the obvious
conclusions that Shurtleff did not apply and that Surfside's raising of the flag again in 2022
would pose no risk of having to fly other, unwanted flags.
This same reasoning —that government speech is not affected by the Shurtleff holding —
explains why countless municipalities, states, and federal agencies around the country flew the
Pride flag in June 2022 without any concern about being required to fly Nazi or satanic flags.
Unlike those other governmental entities, though, Surfside has had to bear the harmful
consequences of Ms. Arango's misreading of Shurtleff. Our Town's public Pride celebrations for
2022 were completely thwarted, and the Town remains mired in a contentious, confusing, and
wholly unnecessary public debate about the implications of the Shurtleff decision. As recently
as July 1, Mayor Danzinger retweeted a request by self-styled "political satirist" Chaz Stevens
that the Town fly "[his] church's Gay Pride Satanic flag."6 Because of Ms. Arango's May 3 e-
mail, many people in our Town, including Town officials, mistakenly believe that the Town's
flying the Pride flag would require the Town to fly flags such as Mr. Stevens's.'
To this day, Ms. Arango still has not issued a public statement repudiating, or even
acknowledging, her misreading of Shurtleff—despite having had numerous occasions and
opportunities to do so. Her self -protecting silence on this issue continues to harm her client,
the Town of Surfside.
The circumstances surrounding Ms. Arango's May 3 e-mail are laid out, in detail, below and in
the accompanying attachments. In section IV of this letter, titled "Requested actions," we
outline steps that, we think, Weiss Serota Helfman Cole & Bierman should take in the light of
Ms. Arango's harmful actions as Town Attorney.
5 See Exhibit A and the discussion in section 11.4, below.
6 See https://twitter.com/TheTweetOfJab/status/1542952394664861696 and the photo attached as Exhibit B.
'This ongoing confusion is evident in a memorandum prepared for the July 2022 Commission meeting by Town
Manager Andrew Hyatt —one of the recipients of Ms. Arango's May 3 e-mail. See Exhibit C, attached. The three
options that the Town Manager presents to the Commission either leave out or obscure the obvious alternative
exemplified by the 2021 flag -raising: The Town can simply choose to fly a nongovernmental Pride flag as
government speech, without making any general policy. The omission seems to be either intentional obfuscation
by the Town Manager, or else a downstream effect of Ms. Arango's own confusion, or both.
2
I. Background
1. Surfside's 2021 raising of the Pride flag
In June 2021, The Town of Surfside, for the first time, raised a six -color LGBTQ Pride flag at the
Surfside Community Center, in celebration of Pride Month. And —crucially for the issues raised
in this letter —the 2021 flag -raising was an act of the Town. While the Town Commission did
not authorize the flag -raising in a formal vote, a majority of the Commission did informally
approve the flag -raising; the Town Manager, Andrew Hyatt, also approved of the event and
helped to plan and to publicize it.8 The Pride flag that was raised in 2021 was property of the
Town, having been gifted to the Town by then -Vice Mayor Tina Paul.9 The Town of Surfside had
also planned other events that year in commemoration of Pride Month —a kite -flying event on
June 26 and a Pride-themed Farmers' Market on June 27 —that were canceled after the collapse
of Champlain Towers South on June 24, 2021.1°
All of these facts were known or knowable by Ms. Arango when she sent her e-mail on May 3.
2. Lillian Arango's e-mail of May 3, 2022
Ms. Arango e -mailed the Mayor, Town Manager, and Assistant Town Manager on May 3, 2022.
In that e-mail, she forwarded a news article about the Shurtleff decision, which was written by
Daniel C. Vock and which apparently had first been published on the website route-fifty.com.
Your colleague Susan L. Trevarthen had apparently forwarded Mr. Vock's article to an internal
WSHCB mailing list on May 2, and then Ms. Arango re -forwarded the article the following day
to selected Town officials, with the following comment appended:
"Very interesting case — it brings to mind when the Town raised the pride flag at
Town Hall and we opened the door to have to allow other flags."11
Mayor Danzinger replied several hours later:
"Very interesting. I'm assuming we're done with flying any non governmental
flags?"12
Ms. Arango either did not reply in writing to Mayor Danzinger's question, or else her reply was
not provided to Gerardo Vildostegui in his public -records request to the Town Clerk.l3
8 See Exhibit D. Note the Town Manager's repeated use of "we" —meaning the Town —in his responses to Vice
Mayor Paul. See also Exhibit E, the Town's e-mail of June 14, 2021, publicizing the 2021 flag -raising.
9 See Ms. Paul's e-mail in Exhibit D. It is our understanding that the Town is still in possession of that rainbow flag.
'See Exhibit F.
11 See Exhibit A.
12 See Exhibit G.
13 See Exhibit K.
3
3. Surfsiders' unanswered requests that the Town fly the Pride in 2022
On various occasions in May and June 2022, residents of Surfside approached Town officials
with requests that the Town fly the Pride flag in June, as it had done the previous year. Those
requests were all denied, and the rationale for the denials appears to derive from Ms. Arango's
advice.
On May 9, Gerardo Vildostegui e -mailed the Town Manager and Assistant Manager inquiring
about the Town's plans to raise the flag in 2022.14 His e-mail received no reply. During a break
at the May 10 meeting of the Town Commission meeting, Mr. Vildostegui approached these
officials privately to repeat his request. The Town Manager said that the Town had no plans to
fly a Pride flag in 2022. The Assistant Manager told him that the Town would not fly the Pride
flag because of a recent Supreme Court decision.
At the "Good and Welfare" portion of the June Commission meeting, Surfside residents Eliana
Salzhauer and Joshua Epstein asked the Commission to raise the Pride flag. After that meeting,
a group of residents began circulating a petition to the Commission, asking that the Town raise
the Pride flag for the remainder of June. The organizers of the petition drive presented the
document to the Commission on June 27, with over 500 signatures. And on June 28, the
anniversary of the Stonewall Riot, about 45 residents rallied at Town Hall in favor of raising the
Pride flag.
Ultimately, three Commissioners (Nelly Velasquez, Jeff Rose, and Marianne Meischeid)
separately asked the Town Manager to raise the flag in June, but the Town Manager refused.
The Town Manager has rejected requests from Mr. Vildostegui to explain his decision, or the
role that Ms. Arango's May 3 e-mail played in his decision -making process.15
The Pride flag did not fly at the Surfside Community Center in June 2022.
II. Lillian Arango's problematic actions and inactions regarding the Pride flag
This section lays out various irregularities in Ms. Arango's actions and inactions regarding the
issue of the Pride flag in Surfside.
14 See Exhibit H.
15 See Exhibit J.
4
1. Ms. Arango's sending an unsolicited e-mail on a sensitive political subject
We have made multiple public records requests and have turned up no evidence of any Town
official's having solicited Ms. Arango's advice on the Pride flag. It appears that Ms. Arango
simply sent the May 3 e-mail on her own initiative in an attempt to shape Town policy.16
Whether it was solicited or not, though, that e-mail was inappropriate. If any Town official had
requested an opinion from Ms. Arango—and it seems that Mayor Danzinger may have done so
subsequently, in his immediate reply to her e-mail17—a 28 -word insinuation about a Supreme
Court decision is simply not an acceptable legal work -product. And if that e-mail was not
solicited, one has to wonder how sending it could have been in the interest of Ms. Arango's
client.
2. Ms. Arango's sending the e-mail selectively to just the Mayor, Town Manager, and
Assistant Manager
Surfside does not have a strong -mayor form of government. The Town is governed by a five -
member Commission, and the Mayor is only one voting member on that Commission. Ms.
Arango's selective dissemination of her e-mail raises further questions about why she selected
only those recipients, and about whether she was really acting in the interest of the Town.
Subsequent to Ms. Arango's e-mail, at least three of the other Commissioners publicly
expressed support for the Town to raise the Pride flag in June 2022. Why did Ms. Arango
conceal her advice from those Commissioners on May 3?
3. Ms. Arango's sending this particular e-mail on a subject outside her area of expertise
Ms. Arango's webpage on the WSHCB website does not list the First Amendment, or any part of
federal constitutional law, among her practice areas, and her May 3 e-mail does not appear to
have been sent with the collaboration of any other WSHCB attorney with expertise in these
areas.
Ms. Arango's lack of expertise in the First Amendment, no doubt, partly explains her grievous
misreading of Shurtleff v. Boston (see section 11.4, below).
It also raises a question about her compliance with Rule 4.1.1 of the Rules Regulating the
Florida Bar:
16 See Exhibit K.
17 See Exhibit G.
5
"A lawyer must provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation."
Ms. Arango's e-mail of May 3 does not, in our view, meet the standards for legal knowledge
and skill laid out in that rule and in the accompanying Comment in the RRTFB.
4. Ms. Arango's misreading of Shurtleff v. Boston in the May 3 e-mail
The biggest and most obvious problem with Ms. Arango's e-mail is that she gave very bad legal
advice.
The Supreme Court opinion that Ms. Arango cited, Shurtleff v. Boston, begins by laying out an
important distinction. A flag flying on a government -owned flag pole might fall into one of two
categories: (1) it could be speech by a private individual or private entity within a government -
created "forum for private expression," or (2) it could be "the government's own speech."18
The distinction is, in the Court's words, "not always clear," but it is "important"; in the Shurtleff
case, the distinction is absolutely central to the Court's opinion.
Shurtleff involved a flag -flying of the first kind —private speech in a government -created "public
forum."19 The City of Boston acknowledged that they had created a forum for private speech,
and the Court held that Boston could not, therefore, discriminate against Mr. Shurtleff by
refusing to fly his Christian flag in that forum.
About flag-flyings of the second kind —those that qualify as government speech --the Shurtleff
Court had this to say:
"When the government wishes to state an opinion, to speak for the community,
to formulate policies, or to implement programs, it naturally chooses what to say
and what not to say....That must be true for government to work. Boston could
not easily congratulate the Red Sox on a victory were the city powerless to
decline to simultaneously transmit the views of disappointed Yankees fans. The
Constitution therefore relies first and foremost on the ballot box, not on rules
against viewpoint discrimination, to check the government when it speaks."2°
With these words, the Court makes it clear that government speech is not subject to the non-
discrimination principle articulated in the Shurtleff opinion.
18 596 U.S. _ (2022) (slip op. at 1).
19 See id., slip op. at 3.
20 Id., slip op. at 5.
6
Surfside's raising of the Pride flag in 2021 clearly fell into the category of government speech
and was thus outside the scope of the Shurtleff holding. For proof of this claim, look no further
than Ms. Arango's own e-mail of May 3, where she describes Surfside's 2021 raising of the Pride
Flag was government speech —an act of the Town government. In Ms. Arango's own words,
"...the Town raised the pride flag at Town Hall...."21 And, as we pointed out in section 1.1,
above, there was additional evidence —abundant, overwhelming, and readily accessible to Ms.
Arango—to support the view that Surfside's 2021 flag -raising was government speech.22
These obvious facts —acknowledged by Ms. Arango herself —should have made it clear to Ms.
Arango that the Shurtleff opinion did not apply to Surfside's 2021 raising of the Pride flag, and
that Shurtleff also would not apply to any other railings of the Town -owned Pride flag in 2022
or in future years.
Somehow, though, Ms. Arango failed, in her May 3 e-mail, to take note of the distinction
between government speech and individual speech in a public forum —a distinction so central
to the Court's reasoning in Shurtleff that the Court lays it out on the very first page of the
opinion.
One has to wonder, did Ms. Arango even read the Shurtleff opinion before firing off her May 3
e-mail? (This is a genuine question, not merely a rhetorical one. Staff at WSHCB should be able
to answer it by looking at billing records and logs of Ms. Arango's activity on May 2 and May 3,
2022.)
5. Ms. Arango's subsequent refusal to explain or to correct her May 3 e-mail
Despite having had numerous occasions and opportunities to do so, Ms. Arango has declined to
explain, correct, or even discuss her erroneous suggestion that the Town's raising the Pride flag
might mean having "to allow other flags." Instead, she allowed this falsehood to linger in the
minds of Town officials and in the larger, public conversation in the Town. If, as we have
argued, her e-mail of May 3 harmed her client, then her subsequent refusal to correct her
mistake has only magnified and perpetuated that harm.
a. Seeing the obvious examples of other cities, in Miami -Dade County and across the U.S.
Throughout the month of June 2022, Ms. Arango had to be aware that flying the Pride
flag was a common practice for jurisdictions around the country, including Miami -Dade
County and several municipalities within the County, such as Miami Beach and North
Miami. She must have known, too, and that, all over the country, these practices were
continuing in 2022 despite the Court's ruling in Shurtleff. And yet she did not modify or
withdraw the false alarm she had sounded in her e-mail of May 3. Did Ms. Arango think
21 See Exhibit A.
22 See Exhibits D, E, and F.
7
that she had stumbled upon a legal insight that was missed by the U.S. Department of
Justice and by all these other municipal attorneys?
b. Mayor Danzinger's May 3 reply to Ms. Arango's e-mail
When Mayor Danzinger immediately responded to Ms. Arango's e-mail, she apparently
offered no reply —no written reply, at least —to the query quoted above: "I'm assuming
we're done with flying any non governmental flags?"23 This would have been a perfect
opportunity for her to explain, in writing, the difference between government speech
and a public forum for individual speech. She did not do so.
It is also worth noting that, later in June, Ms. Arango failed to mention Mayor
Danzinger's query of May 3 when a reporter from the Herald asked her if she had given
advice on this matter to the Town.24
Reporter Martin Vassolo asked Ms. Arango, in that e-mail, "Did the town attorney's
office provide any advice or guidance to the mayor or other town officials regarding
whether the town should raise the Pride flag this year?"
Ms. Arango replied to Mr. Vassolo, falsely, "Such specific advice was not requested of
the Town Attorney's office, and, therefore, was not provided."25
c. Seeing Mayor Danzinger's public comments misinterpreting Shurtleff
During June 2022, Mayor Danzinger made several public comments, to the press and on
Twitter, repeating the mistaken idea that Shurtleff might require the Town to fly flags
with various kinds of hateful or unpopular messages. In the June 15 Miami Herald
article, Mayor Danzinger even cites Ms. Arango's advice as the basis for his claims. And
yet Ms. Arango did not weigh in on the issue.
d. Failing to respond to a direct question by Herald reporter Martin Vassolo
Following Mayor Danzinger's public statements, Miami Herald reporter Martin Vassolo
wrote to the Town on June 27, seeking clarification of Ms. Arango's views on Shurtleff.
Mr. Vassolo asked:
"Does the town's legal staff believe the raising of the Pride flag would
create legal liability for the town related to outside groups requesting
that their flag be flown?"26
23 See Exhibit G and the discussion in section 1.2, above.
24 See Exhibit L.
25 See Exhibit L.
26 See Exhibit L.
8
Ms. Arango's reply simply avoided the question:
"Traditionally, the Town's flagpoles have displayed governmental flags
(U.S., Florida, Town). Based on case law and the lessons learned therein,
we had preliminary discussions with the Town Administration and some
elected officials and would recommend that the Town Administration or
Town Commission make a deliberate policy decision as to whether the
Town wishes to fly flags with other messages on its flagpoles. It is our
understanding that this will be a discussion item on the agenda for the
Commission at its July meeting, and legal is in the process of preparing a
memorandum to assist the Commission in its discussion."27
Mr. Vassolo's e-mail presented Ms. Arango a perfect opportunity to rebut the false
claims that the Mayor and others had been making about Shurtleff.
It is important to note here that clarification on this matter —on the inapplicability of
Shurtleff to government speech —would have bolstered the claims of Pride -flag
proponents such as Commissioner Marianne Meischeid, who had written to the Town
Manager asking that the Pride flag be raised on June 28, the anniversary of the
Stonewall riots.
That Ms. Arango maintained a strategic silence, given the larger circumstances that day,
suggests that her real motivation in evading Mr. Vassolo's question was political —to
keep the Pride flag from flying in Surfside in 2022.
6. Ms. Arango's participation in the dissemination of unsupported and false claims
about the Town's traditional practice and policy regarding flags
One of the most puzzling and most disturbing features of Surfside's Pride flag controversy has
been Town officials' repeated —and false —assertions that the Town has had a tradition or a
policy of not flying nongovernmental flags.28
It is not clear what the basis of those historical assertions is or could be, given that the Town
has no written policy on the matter.
And, contrary to the repeated claims by Town officials, the Town does indeed have a history of
flying nongovernmental flags.
The 2021 raising of the Pride flag is, of course, the most obvious example. It is worth noting
here that Town Manager Hyatt, in his June 2021 correspondence about the Pride flag with
27 See Exhibit L.
28 See the comments of Town spokesperson Frank Trigueros in the June 15 Herald article.
9
then -Vice Mayor Paul, never once mentioned a contravening tradition or practice.29 One would
think that, if such a tradition or practice existed, it would have come up at some point during
this discussion. The fact that neither Mr. Hyatt nor anyone mentioned a contravening tradition
or policy strongly suggests that no such policy or tradition ever existed —until, that is, Town
officials invented one in 2022.
In addition, as longtime residents of the Town can attest, the Town did indeed, for many years,
fly the nongovernmental POW -MIA flag at one of its parks.30 Gerardo Vildostegui brought the
Town's history with the POW -MIA flag to the attention of Town officials —including Ms.
Arango—in an e-mail dated June 20.31 The only person to respond to Mr. Vildostegui's e-mail
was Mayor Danzinger, who attempted to argue that the POW -MIA flag was indeed
governmental. Mayor Danzinger's reply misses the point, however. The relevant question is
whether the Town has or had a longstanding tradition or policy of not flying nongovernmental
flags. If such a tradition or policy existed, one would expect to find, in the records of the Town,
some debate or discussion of the governmental or nongovernmental status of the POW -MIA
flag. That no such discussion has been found suggests, once again, that the tradition or policy
never did exist.
It appears, then, that Town officials have concocted this "tradition" —retroactively and on the
fly —to provide cover for this year's decision not to fly the Pride flag.
Ms. Arango has been an active participant in this tendentious attempt to re -write the Town's
history. Consider again her June 27 reply to Martin Vassolo, claiming that "[t]raditionally, the
Town's flagpoles have displayed governmental flags (U.S., Florida, Town)."32 Similar claims are
repeated in the Town Manager's memorandum for the July 12 meeting, which appears to be
based on WSHCB work-product.33
We ask, on what basis did Ms. Arango make these claim about Town tradition and policy?
Where is she getting her facts? And why did she not address the two most obvious counter-
examples to her claim —the 2021 flying of the Pride flag and the years -long flying of the POW -
MIA flag?
WSHCB staff can be of help here in determining the origins of this claim. Did Ms. Arango or her
colleagues conduct any research at all into the Town's past policies and practices?
29 See Exhibit D.
39 This flying of the POW -MIA long pre -dated Congress's recognition of the flag in 2019.
31 See Exhibit M.
32 See Exhibit L.
33 See Exhibit C.
10
7. Ms. Arango's unnecessary, unsupported, and harmful recommendation that the Town
adopt a policy on nongovernmental flags
As noted in section 11.5, above, Ms. Arango, rather than withdrawing or correcting her mistaken
insinuation about Shurtleff, has doubled down on it. To quote once again from her reply to Mr.
Vassolo, Ms. Arango has recently said the following:
"Based on case law and the lessons learned therein, we had preliminary
discussions with the Town Administration and some elected officials and would
recommend that the Town Administration or Town Commission make a
deliberate policy decision as to whether the Town wishes to fly flags with other
messages on its flagpoles."34
A natural question to ask here would be, what is the legal basis of Ms. Arango's
recommendation? What is the "case law" and what are the "lessons learned" to which
Ms. Arango refers? If Ms. Arango means Shurtleff, she is once again repeating her
inexcusable mistake of failing to acknowledge that the Town's raising of its own Pride
flag (Town property!) is government speech. And if Ms. Arango means some other case,
then WSHCB should have some evidence of her legal research on this issue.
The discussion of Town policy that Ms. Arango recommended is now, unfortunately, on the
agenda for the July 12 meeting of the Town Commission. As noted above, the Town Manager's
memorandum for agenda item 9(d) is shot through with a misunderstanding of Shurtleff—one
that is directly attributable to the bad advice Ms. Arango gave on May 3 and to Ms. Arango's
ongoing refusal to modify that advice. The memorandum also repeats Ms. Arango's
unsupported —and probably false —claim that the Town had a "historic practice of displaying
only governmental flags."3s
The discussion on July 12 promises to be contentious, and it is wholly unnecessary.
Shurtleff makes it clear that, if the Town itself were to raise the Pride flag, no general
policy on flags would be required. Also, those of us who requested that the Town fly its
own Pride flag have never once requested that the Town use its flagpole as a Boston -
style public forum for individual speech. That option, which appears in the Town
Manager's memorandum, is a red herring. And it is up for discussion only because of
Ms. Arango's mistaken reading of Shurtleff.36
The discussion of this agenda item, we fear, will only increase the harm that Ms.
Arango's bad advice has created in our Town.
34 See Exhibit L.
36 See Exhibit C.
36 See the discussion of Options 2 and 3 in Exhibit C.
11
III. Conclusions
Taken as a whole, Ms. Arango's actions and inactions on the Pride issue —beginning with her
May 3 e-mail and continuing to the present day —do not appear to be the work of an attorney
who has her client's best interest in mind. They seem, instead, to be the work of a political
actor, someone determined to keep Surfside from flying the Pride flag in 2022.
Taking into account the actions and inactions detailed above, we cannot trust Ms. Arango to
fulfill the duties of Town Attorney for the Town of Surfside.
IV. Requested actions
1. Lillian Arango should immediately resign her position as Town Attorney and cease her
representation of the Town of Surfside.
2. Ms. Arango and WSHCB should issue a public statement acknowledging the error in Ms.
Arango's e-mail of May 3. The statement should clarify that the Supreme Court ruling in
Shurtleff v. Boston is not applicable to government speech, and that Shurtleff would
therefore not be applicable to a decision by the Town of Surfside to fly its own Pride
flag.
3. WSHCB should launch an objective inquiry —preferably conducted by neutral, outside
counsel —of Ms. Arango's actions as Town Attorney. That inquiry should provide
answers to the various questions raised in this letter. Among the questions that most
urgently require answers are these: Did Ms. Arango even read Shurtleff before sending
her May 3 e-mail? Why did Ms. Arango not send that e-mail to the entire Commission?
Did she respond in any way to Mayor Danzinger's query on May 3? If not, why not? Did
she make false claims in her June 27 e-mail to the Miami Herald? Did she conduct any
research at all into the Town's traditional practices and policies before making public
statements about them?
We hope that you will be able to respond promptly to our urgent concerns and requests.
In the meantime, we will be working to inform the press and the LGBTQ legal community about
how Ms. Arango's bad advice thwarted Surfside's recognition of Pride Month, divided our
community, and harmed her client.
Sincerely,
Gerardo Vildostegui
Jennifer Hill
Eliana Salzhauer
12
cc: Lillian M. Arango, Weiss Serota Helfman Cole & Bierman
Tony Recio, Weiss Serota Helfman Cole & Bierman
Joseph H. Serota, General Counsel, Weiss Serota Helfman Cole & Bierman
Diversity and Inclusion Program, Weiss Serota Helfman Cole & Bierman
Surfside Town Commission
8/18/22. 10:36 AM Gmail - questions about your recommendation regarding July item 9D
fri Gmail
Gerardo Vildostegui <gerardo.vildostegui@gmail.com>
questions about your recommendation regarding July item 9D
1 message
Gerardo Vildostegui <gerardo.vildostegui@gmail.com> Mon, Jul 25, 2022 at 4:52 PM
To: Lily Arango <larango@wsh-law.com>
Cc: trecio@wsh-law.com, mbierman@wsh-law.com, mburnstein@wsh-law.com, cwood@wsh-law.com, Eliana Salzhauer
<esalzhauer@gmail.com>, Jennifer Hill <jenjhillfl@gmail.com>
Bcc: April Duff <april.b.duff@gmail.com>
Dear Ms. Arango:
The discussion of flag policy (agenda item 9D) at Surfside's July 12 Town Commission meeting was a sad spectacle. The
discussion accomplished nothing of value; instead, it only inflamed ethnic and religious tensions in our Town. 1, as a gay
man, had to listen while one of my neighbors described the Pride flag as antithetical to the American flag, and while she
falsely, ignorantly, and dismissively said, "The values of the LGBTQ community are only to celebrate sexuality."
get no pleasure from saying this, but that ugly, tense, unnecessary discussion was entirely predictable --and my
neighbors and I indeed predicted it in our letter of July 11. I am deeply disappointed that you and your firm did not reply to
our letter and that you did not do anything to address the problems you created.
That discussion happened because of your (and your firm's) legal recommendations. It was your fault.
[Video of the meeting is available here: https://play.champds.com/surfsidefl/event/211
The discussion of item 9D begins at 0h14m45s.
My own remarks begin at about 0h22m20s.
A good example of the bigoted remarks that this discussion item elicited can be found at 0h32m05s.]
am writing to you now to ask you to explain your legal recommendation, which presumably represents the view of your
firm, Weiss Serota Helfman Cole & Bierman. I would appreciate it if you or someone from your firm could answer the
following questions at your earliest convenience. Since the questions are about legal research that you have presumably
already done, they should not take long to answer.
1. On June 27, you told Martin Vassolo of the Miami Herald that you were recommending the discussion of what became
July's item 9D "[b]ased on case law and the lessons learned therein." What case law were you referring to?
2. Is there, to your knowledge, any case law that requires a local government to have an antecedent general policy on
flags before it flies a particular nongovernmental flag as government speech?
3. You said in that same e-mail to Mr. Vassolo that "[t]raditionally, the Town's flagpoles have displayed governmental flags
(U.S., Florida, Town)." Similar language appears in the Town Manager's memo of July 12, which I believe to be a WSHCB
work -product. As someone whose personal knowledge of the Town dates back to the 1970s, I know these claims to be
false. In fact, I informed you on June 20 that the Town's traditions actually involved flying other flags than the ones you
mentioned.
What research, if any, did you conduct on this topic? On what did you base the claim about my Town's traditions? Did
you take into account the Town's many years of flying a POW -MIA flag before Congress gave that flag official recognition,
which I informed you about in an e-mail on June 20? Did you take into account the Town's flying the Canadian flag during
its "Salute to Canada" celebrations in the 1970s and 1980s? Could you please share with me all the research you did on
this topic before making public claims about my Town's traditions?
4. Your e-mail to Martin Vassolo failed to answer the question he directly put to you, about legal liability. Why didn't you
answer him?
[It is worth reminding you of the context of your reply to Mr. Vassolo, and of the damage done by your evasion of his
question. On that same day, June 27, Commissioner Marianne Meischeid wrote to the Town Manager asking him to raise
the Pride flag on June 28, the anniversary of the Stonewall Riot. Commissioner Meischeid was the third Commissioner to
make this request, making for majority support on the Commission. And yet, oddly, the Town Manager did not accede to
the request. His reply to Commissioner Meischeid completely ignored her request and merely parroted your
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8/18/22. 10:36 AM Gmail - questions about your recommendation regarding July item 9D
recommendation that the item be discussed in July, after Pride Month had ended. (See the correspondence between
Commissioner Meischeid and Mr. Hyatt, attached.)
believe that if you had given Martin Vassolo a clear and honest answer, the Pride flag would have gone up on June 28,
as 1 and hundreds of others petitioned for --and, crucially, as a majority of the Town Commission wanted.]
5. Mr. Vassolo asked you, "Does the town's legal staff believe the raising of the Pride flag would create legal liability for
the town related to outside groups requesting that their flag be flown?" I would like to ask you the same question, with the
clarification that the 2021 Pride flag -raising was government speech and that we are talking only about government
speech here: Would flying the Pride flag as government speech in 2022, as was done in 2021, have created any legal
liability for the Town?
6. I do not know how your billing works, but I am curious: How much has your law firm billed the Town of Surfside for
your May 3 e-mail to the Mayor, your June 27 e-mail to Martin Vassolo, and your July 12 memo?
***
As bad as the public comments on 9D were, the worst moments in the July 12 meeting may have come after public
comments were closed. Vice Mayor Rose's remarks (at about Oh51 m24s) suggest that he was still under the mistaken
assumption that raising the Pride flag as government speech might subject the Town to legal liability --a misunderstanding
attributable to your own bad advice about Shurtleff v. Boston. And perhaps the lowest point of all comes at 0h53m20s,
when it becomes clear to the Mayor that even a decision on your Option 1 wouldn't settle the question of whether or not to
raise the Pride flag! In fact, voting to approve Option 1 would only have left us right back where we were on May 2, before
you spontaneously decided to send that disastrous and still unexplained e-mail to our Mayor.
Actually, we would be right back where we started, legally, but we would also be more divided as a community. And,
depending on your answer to question #6, we might be poorer, financially, as well --if it turns out to be the case that, for all
this time, we've been paying Weiss Serota for subjecting the residents of Surfside to two and a half months of strife for
absolutely no legal reason.
Sincerely,
Gerardo Vildostegui
14-1 Meischeid-Hyatt correspondence 2022 06 27.pdf
102K
https://mail.google.com/mail/u/1/?ik=473eeb20d9&view=pt&search=all&permthid=thread-a%3Ar3924649900323032573&simpl=msg-a%3Ar8454372746408309840 2/2
>{WLIss SEROTA
HELFMAN COLE + BIERMAN
MITCHELL J. BURNSTEIN, PARTNER
Firm Managing Director
mburnstein@wsh-law.com
July 25, 2022
Via Email: gerardo.vildostegui@gmail.com
Mr. Gerardo Vildostegui
Re: Your correspondence dated July 11, 2022 regarding Surfside's Flag Flying
Policy
Dear Mr. Vildostegui:
We are in receipt of your above -referenced correspondence alleging professional
misconduct and "anti-LGBTQ politicking" by our partner, Lillian M. Arango, in her role as
Town Attorney at the Town of Surfside in relation to the Town's flag flying policy. We take
such allegations (written and verbal) very seriously, as should you. At the outset, we want
to make clear that, since the Firm's inception, we — and that includes Ms. Arango — have
prided ourselves in our diversity and inclusiveness, and especially our support of the
LGBTQ community. This has been our ethos since the Firm's founding in the early 1990s,
long before it was commonplace to do so. As one example, our Firm vigorously defended
in federal litigation the City of Boca Raton's ordinance prohibiting conversion therapy for
LGBTQ youth, just the latest among many professional activities directed to defending and
promoting the rights of historically marginalized communities.
At the same time, Ms. Arango is our colleague, friend and long-time partner, a valued
member of our Firm, and a distinguished professional of the highest caliber. We disagree
with the allegations in your letter. We find that they lack a basis in fact and may amount
to defamation. You are implying or alleging that Ms. Arango has some personal motive or
bias against the LGBTQ community, without any basis in fact and in an apparent effort to
damage her professional reputation.
In order to establish how unwarranted we believe this attack is, it is first important
to understand the role of the Town Attorney. Setting policy is the role of the Town
Commission as elected officials representing their constituents, while the Town
MIAMI I FT. LAUDERDALE I BOCA RATON I TAMPA I GAINESVILLE I WSH-LAW.COM
Mr. Gerardo Vildostegui
July 25, 2022 1 Page 2 of 3
Administration is tasked with carrying out the Commission's policy direction. The Town
Attorney's personal views or opinions are irrelevant, as it is the Town Attorney's role to
support and advance policy as set by the Town's elected body and carried out by the
administration, so long as those policies are within legal bounds.
In this instance, Ms. Arango did not attempt to dictate or influence policy; she simply
mentioned potential issues, and recommended to the Administration and Commission that
this important issue be brought before the Commission at a public meeting for discussion
and public participation. In this regard, she and the Town Manager sought policy direction
from a newly elected commission (four of the five current commissioners were elected on
March 15, 2022) regarding the Town's use of its flagpoles. Such consultation was
appropriate when determining both the kind of speech (governmental or private) to allow,
and if that speech were to be governmental, what the content of the Town's speech should
be. The agenda item included in the Commission's agenda for the July 12th meeting was
researched as to the Town's past policies and actions, and contained an accurate
interpretation of the Shurtleff opinion and all possible policy options for the Town's
consideration.
Contrary to your analysis, Ms. Arango's mere act of forwarding a news article about
a Supreme Court case to the Administration prior to the July 12 meeting does not constitute
issuance of a formal legal opinion. Subsequent discussions sparked by the news article
prior to the scheduling of the July 12 item do not rise to that level, either. Ms. Arango's
statement to the Miami Herald that no formal opinion was sought by the Town is true and
accurate. The same holds true for her not having given a formal opinion on the matter.
We understand that you attended the Town Commission meeting on July 12, 2022
and further stated during public comment that Ms. Arango was professionally unqualified
and asked for her resignation. While it is your right to address the Town Commission
during public comment, the unsubstantiated criticism was clearly intended to damage Ms.
Arango's professional reputation and assert your subjective belief that she engaged in "anti-
LGBTQ politicking." It completely ignored the importance of having the Town's current
elected representatives set policy when questions have been raised as to what that policy
is or should be. While you may personally believe that the current Commission did not
need to set policy given the Town's actions last year, the public comment and discussion
by the Commission on July 12 made it amply clear that there are different perspectives on
flying flags in the Town. What occurred at the Commission meeting was exactly what was
called for — a robust public debate with public participation regarding how the Town should
use its flagpoles: for the Town's governmental speech or for private viewpoints in either a
limited or unlimited public forum. The differing perspectives on how to treat the flagpoles
illustrate the importance of having the Commission, as the residents elected
representatives, establish the Town's policy.
We also understand that at the July 12th Commission you noted that the Mayor had
previously sponsored a resolution to honor a specific cause, as is frequently done by
MIAMI I FT. LAUDERDALE I BOCA RATON I TAMPA I GAINESVILLE I WSH-LAW.COM
Mr. Gerardo Vildostegui
July 25, 2022 1 Page 3 of 3
resolution or proclamation on a particular issue of importance to a commissioner, the
community, and constituents he or she may serve. That resolution was presented and duly
adopted by the Commission consistent with State and Town law. Because such action had
not occurred in 2022, Ms. Arango pointed out that the current Commission had not taken
formal action, or delegated such authority to the Town Manager, to set a policy on the
treatment of its flagpoles. As you are aware, at the July 12th Commission meeting, the
Commission voted to declare June Pride month in the Town of Surfside, in response to a
discussion item brought by Vice Mayor Rose requesting as much.
You are certainly entitled to express your disagreement with the Town's policy
decisions or with Ms. Arango's statements. However, as you are aware as an attorney,
intentional personal assaults on Ms. Arango's character or her professional acumen are
wholly unwarranted and damaging. You write at the conclusion of the letter "in the
meantime, we will be working to inform the press and the LGBTQ community about how
Ms. Arango's bad advice thwarted Surfside's recognition of Pride month, divided our
community, and harmed our client." In fact, on July 22, 2022, you sent an email to our
partner, Ed Guedes, again personally attacking Ms. Arango and stating "one of your
colleagues appears to be misusing her position as the Town Attorney for Surfside to
advance a personal anti-LGBTQ political agenda...", which Mr. Guedes adamantly refuted.
Your continued unsupported assertions as to the perceived facts in this matter are
inaccurate, and we caution against continued efforts to damage Ms. Arango's and the
Firm's reputation. To the contrary, it is your narrative and continued misinterpretation of
all that has transpired that is divisive and harmful to the Town.
Please refrain from such attacks and from any further defamatory actions
immediately.
Very truly yours,
r\JZLJ& apLA,VA01-,
Mitchell J. Burnstein
cc: Mayor Shlomo Danzinger: sdanzinger@townofsurfsidefl.gov
Vice Mayor Jeff Rose: jrose@townofsurfsidefl.gov
Commissioner Fred Landsman: fandsman@townofsurfsidefl.gov
Commissioner Marianne Meischeid: mmeischeid@townofsurfsidefl.gov
Commissioner Nelly Velasquez: nvelasquez@townofsurfsidefl.gov
Andrew Hyatt, Town Manager: ahyatt@townofsurfsidefl.gov
Eliana Salzhauer: esalzhauer@gmail.com
Jennifer Hill: jen.hill@advocacypartnersteam.ora
Lillian Arango: larango@wsh-law.com
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