He's Walking on Sunshine

How Kirk's nonprofit could be subject to Florida's Sunshine Law

Executive summary:

• Kirk Menendez recently portrayed himself as the defender of the Youth Center at a GGG candidate forum, but conveniently omitted that his nonprofit (WMYCA) is the entity that would gain control of the property if the reverter clause is triggered

• The 1958 deed transferring the Youth Center to Coral Gables contains a reverter clause requiring the property be maintained as a war memorial and used primarily for youth recreation

• Kirk's dual role as both WMYCA president and city commissioner creates a potentially serious conflict of interest, as he's been voting on matters affecting a property his organization could potentially claim

• The WMYCA appears to have lost its 501(c)(3) status despite this being a requirement in its own charter, raising questions about its legal validity as the potential inheritor of the Youth Center

• Strong evidence suggests the WMYCA falls under Florida's Sunshine Law given its entanglement with city government, including its physical address being the Youth Center itself and co-authoring the facility's governing policies

• The public deserves transparency about an organization that could potentially seize control of this multimillion-dollar community asset, regardless of the election outcome

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There's plenty of beef to butcher today, so for the sake of efficiency let's just pick up where we left off at the conclusion of last Sunday's post, which, if you happened to miss it, I recommend perusing before going any further.

In 1958, the Coral Gables War Memorial and Youth Center—colloquially known simply as the "Youth Center"—was bequeathed to the City of Coral Gables via a special warranty deed. This deed contains a pivotal provision called a reverter clause, which delineates certain obligations the City must fulfill lest the property revert back to the grantor. Specifically, the reverter clause stipulates that the City must maintain the property under the name "Coral Gables War Memorial Youth Center" and that it must continue to serve as a "memorial to the youth and citizens of Coral Gables who served in World War II and for the recreation and benefit of the youth of Coral Gables." The deed further clarifies that while "limited use" of the property for "adult recreational or civic use" is permissible, such uses must not "unduly interfere" with the property's primary purpose "by and for the youth of the City." Should the City violate any of these requirements, the title of the property "shall revert to the grantor, its successors and assigns."

This is the same reverter clause Kirk invoked in his speech at the Gables Good Government candidate forum last week, where he portrayed himself as the lone bulwark standing between the City and the triggering of this reverter clause—as though he, through his nonprofit War Memorial Youth Center Association (WMYCA), represents the single fraying thread preventing this veritable Sword of Damocles from crashing down upon the City's collective head.

But there's one tiny problem: Kirk conspicuously omitted the identity of the property's grantor. Had he not done so, the audience might have realized that Kirk isn't so much the thread in this metaphor, but the sword itself.

That's right, should the City ever violate the provisions set forth in the special warranty deed, it wouldn't just lose the Youth Center, it would lose it to Kirk's nonprofit.

How about them apples?

The hero we deserve

Before diving in, I should acknowledge that when Kirk painted himself as the last line of defense for the Youth Center, he probably meant that it's the WMYCA that is keeping the City honest and preventing it from "tearing down the Youth Center" and "building condos," to use Kirk's actual words.

But that's a silly notion, isn't it? The idea that the City would cash out on the Youth Center property to suddenly make room for condos ranks up there as one of the dumbest and most paranoid ideas to come from someone who's grown famous for dumb and paranoid ideas.

Maybe if the Youth Center were located just across the street in the Crafts Section, like on Malaga Avenue, and maybe had the City inherited the Youth Center from a deceased relative, and maybe if it had an interested buyer like, I don't know, Trammell Crow—well then maybe one could see the City selling out that way. But that's admittedly a stretch. I mean, who would do something so despicable?

At any rate, Kirk's simultaneously running the nonprofit positioned to inherit the Youth Center while serving as a commissioner with power over that very facility gives rise to serious complications that warrant closer scrutiny. One such complication stems from the compelling argument that Kirk should have recused himself from every past vote involving the Youth Center, given his inherent and substantial personal conflicts.

But that's admittedly water over the dam, particularly since there's a very good chance Kirk won't be a voting member of the commission after April 8. There's an even more significant consequence to all this, however, one that is critically important moving forward and might finally illuminate the frustratingly opaque situation surrounding the WMYCA. A situation Kirk could have clarified long ago if he genuinely valued transparency as he often claims. The key issue is that the WMYCA is almost certainly subject to Florida's Sunshine Law.

“Matters in which the public should have input”

Florida's Sunshine Law, among other things, mandates that all records made or received by any public agency during its official business must be available for inspection. The law defines a public agency as "any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or political subdivision."

While most private nonprofits fall outside Sunshine Law's scope, some become so intermixed with government that they effectively function as public agencies. A 2006 Informal Opinion from Florida's Attorney General tackled this exact situation: Winter Garden Heritage Inc., a private nonprofit holding fee simple title to a historic theater conveyed by the city (with a reversion clause requiring public benefit operation), was deemed subject to Sunshine Law because its activities involved "matters in which the public should have input."

This opinion embraces the principle that once a private organization's activities become sufficiently entangled with government functions, particularly involving matters requiring public input, then that organization must comply with Sunshine Law. Notably, the Winter Garden Heritage reversion clause flowed in the opposite direction from WMYCA's arrangement, with property rights reverting to the city rather than from it. This distinction only strengthens the argument for WMYCA's Sunshine obligations, as in this case it’s the City (i.e. the public), not the nonprofit, that stands to lose property worth tens of millions of dollars should the reverter provision be triggered.

But it’s not just the reverter clause that creates this entanglement, although it alone is likely enough. It’s also the revealing fact that the WMYCA’s physical address is listed as the actual Youth Center, a city-owned facility:

And the fact that the ownership situation is so messy that even the Miami-Dade Property Appraiser isn’t sure who owns the Youth Center (note the difference in the listed owner for each folio):

And the fact that back in 1993, an exceptionally perceptive commissioner named Dorothy Thomson (maybe you’ve heard of her) expressed reservations about investing $6 million of taxpayer money into the Youth Center mainly because it was unclear whether the city would be the ultimate beneficiary of that investment. Note the part at the bottom regarding the WMYCA suing the City in response to its past attempt to turn the Youth Center into a school. It almost makes you wonder why Kirk would mention condos in his fear-mongering comments to the GGG instead of the much more historically relevant example of a school. I guess in addition to the idea of a school not being scary enough, that example might have harmed his street cred with the local PTSA groups to whom he panders:

And, finally, the fact that the WMYCA, co-authored the Policy Guidelines that govern the Youth Center and that were effectuated via a 1994 resolution of the city commission in what is a concrete example of the WMYCA’s active and ongoing role in Youth Center governance.

Collectively, these factors reveal an organization with both an enforceable claim on the Youth Center through the deed's reverter clause and a deeply intertwined relationship with the city. This entanglement stems from at least two sources of authority over a city-owned facility: implicit authority through the reverter clause and explicit authority via the 1993 resolution.

Mind you, this analysis doesn't even begin to address how WMYCA's charitable activities intersect with the city's Youth Center operations, a potentially complicated dynamic that remains frustratingly opaque.

Furthermore, one can hardly deny the public’s legitimate interest in knowing whether the organization named in the reverter clause remains a viable entity. After all, if the grantor specified in the Youth Center deed no longer legally exists, the city might have grounds to obtain what would effectively be a "clear title" by having the reverter clause invalidated. Shouldn't residents have access to this information about a valuable public asset?

Moreover, the question of whether the WMYCA is a legally valid entity isn’t exactly unreasonable. You see, as opposed to what some have claimed, the WMYCA’s 501(c)3 status is hardly an optional convenience. It’s a core requirement contained in its very own charter, which was refiled with the State in 1996. Here are the key provisions:

Per the WMYCA’s very own charter, the nonprofit was created to function as a 501(c)3 and is prohibited from doing anything that a 501(c)3 can’t do. The last time I checked, a 501(c)3 with over $100k of assets can’t not report to the IRS. It can’t refrain from taking minutes of meetings. It can’t allow its board to be stacked with family members in what is a clear conflict of interest. Indeed, the last time I checked, besides having to comply with hundreds if not thousands of rules and regulations, a 501(c)3 has to be, you know, an actual 501(c)3.

All of which means the WYMCA has probably violated its own charter six ways from Sunday by losing its 501(c)3 status, which would not be the first time the organization has run into corporate governance issues. Look closely at the organization’s 1996 application and you’ll see that the WMYCA had to be reinstated as “legislatively or judicially chartered not for profit corporation” after having been dissolved pursuant to F.S. 617.1623(1)(c) for noncompliance:

So what do we have here? We have:

• A nonprofit that holds a powerful reverter claim on a multimillion-dollar city property.

• A nonprofit whose physical address is literally the Youth Center itself.

• A nonprofit so thoroughly entangled with the city that even the Miami-Dade Property Appraiser can't determine clear ownership boundaries.

• A nonprofit that co-authored the official Policy Guidelines governing this public facility.

• A nonprofit with both implicit oversight authority through its reverter clause and explicit authority via the 1993 commission resolution.

• A nonprofit whose 501(c)3 status—a requirement explicitly mandated by its own charter—appears to have lapsed.

• A nonprofit with a documented history of compliance failures.

• A nonprofit whose very existence as a valid legal entity—the linchpin upon which any potential property claim against the city would rest—remains shrouded in mystery.

If this constellation of factors doesn't trigger Sunshine, I don’t know what does. The public has a right to question the viability of an organization that could potentially seize control of a cherished community asset, and it shouldn’t have to jump through legal hoops to do so. Moreover, Kirk's steadfast refusal to bring transparency to this situation speaks volumes about his priorities, none of which appear to be the residents of Coral Gables.

A servant of two masters

Before wrapping this up, I should briefly revisit an earlier point. In addition to Sunshine implications, there's the conflict-of-interest issue. While I don't think it's necessary to scrutinize every Youth Center-related vote Kirk has made over the past four years, it's worth reflecting on the fact that Kirk has been serving two masters since 2021 without anyone apparently noticing.

Granted, our city attorney—and likely 99% of voters—was quite possibly unaware of Kirk's role with the WMYCA and the existence of this reverter clause.

But Kirk certainly knew.

And as both an elected official and a member of the Florida Bar, he's held to the highest standard of fiduciary duty and should understand the concept of divided loyalties. He must have known that his serving as president of a nonprofit that holds a potential claim to a multimillion-dollar city property, while simultaneously acting as a city commissioner with power to shape that very facility, represented a serious conflict of interest. Kirk should not have been crafting policies affecting the Youth Center while positioned to potentially inherit the property should those policies trigger the reverter clause.

Consider the recent and seemingly trivial idea of installing pickle ball courts at the Youth Center at the behest of a group of local enthusiasts who are anything but youthful. Would that have nudged the Youth Center in a more youth-oriented or adult-oriented direction? What about the $60 million bond referendum (which began as $100 million+ bond referendum) for Youth Center for vaguely defined renovations that Kirk was so passionately pursuing just a couple of years ago? What would the massively comprehensive “improvements” that would have occurred had the item succeeded have meant for the Youth Center? What would it have meant for the ‘war memorial’ part, which takes precedence over the ‘youth center’ part in the reverter clause, and which Kirk never seems to mention when he brings up the facility? Have we perhaps already strayed too far from the WMYCA’s vision for the facility?

Do I think Kirk has been surreptitiously attempting to transform the Youth Center so that he could one day make a claim to it? Not really. But one’s intentions, the goodness in their heart, is not the relevant standard. The standard for conflicts of interest isn't whether one would do something unethical, but whether one could. By virtue of being in a position to create conditions that might trigger the reverter clause while simultaneously being positioned to assert that claim, Kirk is unquestionably conflicted.

Regardless of next month's election results, a sword will remain suspended over the city's head, with the WMYCA holding the blade. The potential to convert a multimillion-dollar city-owned property from an indefeasible to a clear title is precisely the type of matter "in which the public should have input," as the Florida Attorney General's opinion suggests.

Resolving whether the WMYCA, the potential property claimant, is a legally valid entity clearly serves the public interest. Residents shouldn't have to rely on Kirk's ethical integrity or commitment to transparency in order to navigate legal obstacles to understand the city's position regarding this important public asset. They deserve clear, unfettered access to all relevant information about the WMYCA, including board meeting minutes, tax filings, and comprehensive financial statements.

As I've said repeatedly, I think Kirk is headed for defeat in a few weeks. I think the most recent commission meeting was also Kirk's last. And if I'm the political operative that my detractors accuse me of being in their own self-soothing way, then I'm a very bad one, because rather than focus on more worthwhile targets, I'm here beating a proverbial dead horse. Indeed, as far as I'm concerned, Kirk lost this election in the Fall of 2023 when he gave himself that enormous raise. Hitting Wells or Pardo would be a much better use of my time were I an operative, and it would be a much wiser use of the imaginary money I'm being paid to do this—as if the meager sum one can command writing about local politics could ever be worth it.

This isn’t about taking the wind out of Kirk's political sails, as he's been languishing in the doldrums for quite some time already. Nor is this about the upcoming election. It's about the sense that there is something fundamentally amiss with the dynamic between Kirk, the WMYCA, and the City. It's about truth, transparency, and accountability. It's about fixing something that has been broken for far too long, regardless of what happens in April.