By Francisco Alvarado, FloridaBulldog.org
Amid the brouhaha over a controversial effort to place a $77-million museum honoring Cuban exiles on a swath of public waterfront land, some troubling details about one of the museum’s primary boosters has surfaced.
For the past six years, attorney Nicolas Gutierrez, a former chairman of the South Florida Water Management District, has been unable to practice law in Florida stemming from a 2009 bar complaint that found he altered an evidentiary document in a civil case.
On May 22, 2012, the state Supreme Court upheld the Florida Bar’s findings to suspend Gutierrez’s law license for a year. And according to the Florida Bar’s online database, Gutierrez has not had his license reinstated and remains ineligible to practice law.
Gutierrez is among a small group of prominent Cuban-Americans who have been urging Miami-Dade County commissioners and Mayor Carlos Gimenez for almost four years to let them build a Cuban exile museum on three acres of county-owned land behind AmericanAirlines Arena and facing Biscayne Bay.
Gutierrez told Florida Bulldog that his bar suspension has no relevance to his involvement with Cuban Exile History Museum Inc., the non-profit entity that is seeking permission to lease Parcel B for $1 a year for the next 55 years and build a privately financed museum on it. “I made a mistake and I paid my dues,” Gutierrez said. “It has nothing to do with the museum.”
The commission was set to vote on a draft lease agreement with Cuban Exile History Museum Inc. at its June 19 meeting, but the item was taken off the agenda by its sponsor, Chairman Esteban “Steve” Bovo. At least six of his colleagues are opposed to placing the proposed building on Parcel B, including Commissioner Audrey Edmonson, whose district includes downtown Miami where the site is located, according to The Miami Herald. Park activists and nearby condo residents have complained that the county should keep its long past due promise to convert Parcel B into a public park and not acquiesce to the demands of a special interest group that would pave over most of the three acres.
Bovo did not respond to an emailed list of questions and two requests for an interview via his spokesman, Chris Ferreira.
Gutierrez said the draft lease agreement was taken off the agenda while Museum Inc. explores new developments, including looking at other possible sites. He added that he hasn’t reinstated his law license because he doesn’t have the funds to pay for a lawyer or the time to do the reinstatement process himself.
“I have three kids to take care of,” he said. “One [of] them has special needs. As far as what happened, I did not have any personal gain from it. With regard to the museum, I have not acted in any way illegally.”
Before he ran afoul of the Florida Bar, Gutierrez lorded over the tri-county region’s most important water conservation agency. In 1999, then-Gov. Jeb Bush appointed Gutierrez to the board of the South Florida Water Management District even though one of his clients at the time was the Fanjul family, which has run one of the largest sugar production operations in the state and has contributed to the deterioration of the Everglades.
Gutierrez, a three-time appointee of Republican Gov. Jeb Bush, served as the Water District’s chairman in 2008, his last year on the board. The Sun-Sentinel reported that while he was chairman, Gutierrez and other board members burned through $800,000 in fuel and other air-related expenses by taking unnecessary flights aboard planes and helicopters operated by the Water District. Taxpayers picked up the tab.
Florida Bulldog reported in 2011 that Gutierrez took advantage of a loophole in the Water District’s rules that allowed him to lobby key staff members seven times on behalf of three clients shortly after his term was up. The loophole circumvented Florida’s conflict-of-interest law that bars appointed state officers from lobbying their former agency two years after leaving office.
All the while, Gutierrez was dealing with the fallout from the Florida Bar probe, which he tried to downplay when he spoke to Florida Bulldog. “I didn’t forge anything,” he said. “I reconstructed a document. My mistake was that I backdated it [to show] the same date as the original, which was lost.”
The bar complaint contradicts Gutierrez’s assertions. It states that in February 2008 he was retained by Oramys Collera and Jose Duran Jr. to facilitate the sale of their boat manufacturing business to Arnaldo Gomez Jr. Among Gutierrez’s responsibilities was drafting a memorandum of understanding between his clients and Gomez that became the focus of a dispute between the sellers and the buyer in 2009.
“The respondent discovered the memorandum of understanding contained several errors,” the bar complaint states. “Those errors included duplicate provisions and page numbers as well as the omission of half of a section concerning the amount of money due to Duran.”
Gutierrez directed Daniel Espino, a law firm associate who had just been admitted to the Florida Bar, to draft a lawsuit on behalf of his clients against Duran and to attach the memorandum of understanding as an exhibit while citing the errors and omissions he had made, the bar complaint.
Upon reviewing the draft, Gutierrez directed Espino to alter the memorandum of understanding by correcting his errors and omissions, as well as removing their mention from the lawsuit, the Florida Bar found. However, the associate refused and reported Gutierrez to law firm partner Gregory Borgognoni, who supported Espino. Borgognoni told Gutierrez that the memorandum should not be altered, the bar complaint states.
“Nevertheless, on or about February 20, 2009, respondent created an altered version of the memorandum of understanding, inserting the missing language regarding Duran’s payment, changing the margins of the document, and deleting duplicate provisions,” the complaint states, adding that Gutierrez took further steps to “help conceal the fraud.”
For instance, he cut and pasted the signatures of Gomez and Duran from the original memorandum onto the altered version. The bar also determined that Gutierrez also got Collera’s wife to forge her husband’s name on the fraudulent memo without his client’s knowledge.
On March 26, 2009, Gutierrez filed the lawsuit with the altered version of the memo in Miami-Dade Circuit Court. The Florida Bar found that Gutierrez had violated rules prohibiting lawyers from fabricating evidence, as well as withholding evidence from adversarial parties.
Three years later, on Feb. 21, Gutierrez pleaded guilty to the bar complaint and agreed to a one-year suspension of his law license along with a condition that he complete ethics school. On May 22 of that year, the state Supreme Court upheld the bar’s ruling. Gutierrez’s suspension yielded little news coverage, except for a blurb in the South Florida Business Journal, according to a Google search.
His troubles with the Florida Bar didn’t stop Gutierrez from playing an instrumental role in Museum Inc., which was incorporated in 2011. Florida corporate records list him as the non-profit’s registered agent and board secretary. Other prominent board members include former Miami City Manager Pete Hernandez, Bay of Pigs veteran Jose “Gene” Miranda and civil engineer Carlos Penin.
The group’s website erroneously describes Gutierrez as a practicing lawyer. “Gutierrez concentrates his practice in providing legal counsel to international clients for inbound and outbound business transactions, with an emphasis on Latin America,” the website states. “Mr. Gutierrez received an ‘A-V’ rating from Martindale Hubbell, which is the highest professional distinction obtainable by attorneys. Mr. Gutierrez has been listed: among the ‘Top Lawyers in South Florida.’ ”
The website doesn’t say anything about his license being suspended. When questioned by Florida Bulldog, Gutierrez insisted that he is not practicing law. He added that his suspended law license is common knowledge at County Hall. “Of course everybody knows it,” he said. “The fact … is public so everyone knows it.”
Not everyone. County Commissioner Xavier Suarez and a spokeswoman for Mayor Gimenez told Florida Bulldog that they didn’t know Gutierrez can’t practice law. “I was unaware,” Suarez said in a phone interview. “He showed up with this group at the beginning of their effort to get Parcel B. He’s the leader of the lobbying team, like a consigliere. I met with him and his group a few times.”
Gimenez’s spokeswoman Myriam Marquez said Gutierrez’s law license never came up when he met with the mayor. “The mayor is unaware of any bar suspension of Mr. Gutierrez,” she said, noting that Gimenez is following the county commission’s directive from 2014 to negotiate an agreement with Museum Inc.
Marquez said the county commission can determine whether Gutierrez’s lack of candor and the circumstances that led to his law license suspension should impact a deal with Museum Inc.
“The county is entering into an agreement with an organization, not with a particular individual,” she said. “As far as ‘why enter into the agreement,’ this question should be directed to commissioners. They would have to vote up or down to continue the museum project or rescind it.”