Broward Health Indictments – Booyah!

In Broward Health, Corporate Management, Original Content by Dan LewisLeave a Comment

Originally posted on my Broward Health Blog on December 18th, 2017.

On December 12th, the Broward County Grand Jury indicted Broward Health Board Chairman Rocky Rodriguez, Commissioner Christopher Ure, former Commissioner Linda Robison, General Counsel Lynn Barrett and Broward Health Interim CEO/President and former Commissioner Beverly Capasso for violating Florida’s Sunshine Laws as well as conspiracy to violate Florida’s Sunshine Laws.

Broward State Attorney Mike Satz and assistant State Attorney Tim Donnelly should be thanked for representing the public interests in bringing these indictments.  It took courage and character. Knowing something about the circumstances surrounding these indictments – I have no doubt that in a fair trial by either a jury or judge – there with be convictions or plea-bargained settlements.

Before I get to my analysis, let me “set the table” for my discussion.

You can read news stories about these indictments in most of the local publications and blogs (e.g. Broward Beat, Florida Bulldog, The Sun-Sentinel, Local10 – Bob Norman)  Buddy Nevins of Broward Beat lists the indictment counts and it bears repeating here for context.

  • Count I of the Indictment alleges that the four commissioners met out of the public eye through conduits or intermediaries to hold defacto meetings at a hotel, restaurant, and/or by telephone to discuss a “reportable event” allegedly committed by the North Broward Hospital District Interim CEO/President Pauline Grant, prior to the District’s December 1, 2016, Special Board Meeting
  • Count II of the Indictment alleges that the four commissioners violated the Sunshine Law at the December 1, 2016 Special Board Meeting by not properly noticing to the public the proposition and action they took regarding the termination of Pauline Grant
  • Count III of the Indictment alleges that General Counsel Lynn Barrett solicited the commissioners to violate the Florida Sunshine Law.
  • Count IV of the Indictment alleges that the General Counsel and the Commissioners conspired to violate the Florida Sunshine Law.

In reaction to the indictments, my friend Robert Butterworth (Counsel for Broward Health and former Florida Attorney General) and Roberto Martinez issued the following ill-advised statement.

Media Statement from Robert A. Butterworth and Roberto Martínez regarding action taken by the Broward County State Attorney:

This is the most misguided prosecution we have ever seen.

Instead of protecting the new management and commissioners at the North Broward Health District, who have been intimidated and harassed while cooperating with federal and state law enforcement officers to root out corruption and violations of the federal health care laws, the State Attorney’s Office (SAO) allowed itself to be manipulated by the very same people who were replaced because of their mismanagement and corruption. The SAO deliberately disregarded the reports of the federally mandated Independent Review Organization issued to the Office of the Inspector General of the Department of Health and Human Services describing the pattern of obstruction and other potential violations of the laws by some former executives and commissioners.

This deeply flawed investigation was predetermined, biased, and manipulated from the start.

The SAO’s professed interest about enforcing the Sunshine Laws is contradicted by its refusal to subpoena the most critical witness to the grand jury that has essential exculpatory evidence about defendants’ compliance with the Sunshine Laws.

All the defendants are innocent and will be exonerated at the trial.

Let’s be clear. If it walks like a duck, quacks like a duck – sometimes, it’s a duck!

First the obvious.  Of course – to any reasonable person, the Board and Lynn Barrett violated the sunshine laws.  The record of the December 1st, 2016 special board meeting could not reasonably support any other explanation for the instantaneous, abrupt and draconian actions taken completely absent any deliberation or discussion.

A Pattern of indifference

As in any case, the problem is proof of the obvious – and for that, the Grand Jury heard testimony apparently sufficient to indict.   Since the replacement of the very capable Corporate Counsel Sam Goren in 2015 with the current Counsel Lynn Barrett, Broward Health talks about transparency yet has established a pattern of apparent bush-league Sunshine violations from the failure to properly notice meetings, action on agenda walk-on items without sufficient cause, failure to provide meeting materials to the public and providing the public an opportunity speak to every agenda item.   Routinely, public matters are discussed in “strategic” shade meetings like the advertising and marketing contracts with “Outside Eyes”, and “Zimmerman” as well as a variety of district priorities and their associated budgets. I have written may posts about these issues over the last three years (See my archived Posts).  These continual violations have been without consequence so it is not difficult to understand that when a potential real problem requiring Board Action arises – why not just do what is expedient.  At Broward Health, too often it appears that to management and Miss Barrett, in particular- the end justifies the means.

While historically there have been Sunshine miss steps at Broward Health prior to Miss Barrett, the team of Board Chair DiPietro, CEO Nabil El Sanadi, and General Counsel Barrett made a mockery of the Sunshine Laws, transparency, the system’s financial stability and any public accountability let alone participation.   Competent staff were driven away or purged, important clinical programs and initiatives were abandoned in favor of “special deals”, and of course – the flagship deal of “Outside Eyes” and Zimmerman advertising linking Broward Health politically and financially with DiPietro, Broward County Commissioner Chip LaMarca (now candidate for a state house seat).  You will recall that the legacy of at least part of this deal was a reportable event in the opinion of the Independent Reporting Organization (IRO).   I spent some time documenting these matters contemporaneously and if have read any of my past posts you know that I could add to the above list with many more examples of mismanagement. (I have reason to believe that “other agencies” still have this particular issue under investigation..)

The reason I digress historically is that it is this mismanagement that is Broward Health’s greatest challenge today, and one of the Board Commissioners was there through it all; Chairman Rocky Rodriguez.  Rocky has been my friend for more than three decades, and I can tell you absolutely that Rocky would not knowingly violate Florida’s Sunshine laws yet I believe he absolutely did violate the sunshine laws.  How could this happen?  In my view, he was given bad advice that he would be acting within the law.  But Rocky should have known better.   Rocky did know better.

Rocky’s other problem is that obligations under the Sunshine Laws are personal which means that he is not entitled to legal representation provided by Broward Health and he cannot receive legal assistance as a gift due to gift limitations of public officials.  If he is acquitted by a court, he can recover his legal fees – but I don’t believe he will be acquitted if he goes to trial.

Rocky’s final problem is that the same policy the board used to oust Paulene Grant, a reportable event as the basis of a demand for a resignation or removal from office – applies to himself.  Under this circumstance, his failure to resign will likely trigger even more legal issues.  I’m truly sorry for my friend Rocky, but the rules have to apply to everyone or they apply to no-one.

Rocky’s dilemmas apply equally to Commissioner Ure. But unlike Rocky who I know to be honorable, in my opinion, Ure is not.  In addition to Mr. Ure Sunshine problems, there is the little matter of apparent ethical breaches discussed in my “Commissioner Ure – Bully Busted!” post on my blog that remains pending.

“Hoisted by their own Petard”.

Similar to the additional issues potentially facing Commissioner Ure, Counsel Lynn Barrett and interim CEO Capasso face removal by the Board should the Board apply the same standards they used to justify the removal of interim CEO Paulene Grant.  The adopted policy requires those accused of a crime defined as a reportable event in the Federal Consent Agreement (CIA) must resign or be terminated.  This stark and uncompromising policy was adopted by the Board to comply with the CIA’s requirement that Broward Health promulgates policies to enforce the consent agreement.  It will be interesting to see if the rules apply to everyone or just those who question Lynn Barrett.

No doubt, as an additional matter – Counsel Lynn Barrett will also face a number of bar complaints relating to her actions “counseling” various board members to allegedly violate Florida’s sunshine laws.  And we haven’t even begun to discuss the manner that Broward Health handles public records requests.

So, to summarize:

  • The obligations of Florida’s Sunshine Laws are personal.
  • Everyone who was indicted must use their own funds to defend their actions until a verdict.
  • Gift limitations for public official severely limit the accused from receiving “free” legal assistance, and the optics for attorneys with Broward Health relationships would be horrific if they provided legal assistance under any unusual or strange circumstances.
  • If a Court of competent jurisdiction acquits, their legal fees can be substantially recovered from Broward Health.
  • The Governor typically suspends public officials when they are charged with a crime. If the Governor follows his own policy, Commissioners Rodriguez and Ure will be suspended.
  • If the Governor does not suspend Commissioners Rodriguez and Ure, Broward Health’s own policy under the CIA would require them to resign – if the policy actually applies to everyone as they say.
  • Commissioner Ure probably faces other official actions relating to ethical issues
  • Interim CEO Capasso and General Council Barrett should be required to resign or be removed by the Board under Broward Health’s own CIA related policy.
  • Counsel Barrett probably faces multiple bar complaints relating to both ethical and professional issues raised.

As to my good friend Robert Butterworth and his colleague Roberto Martinez surprising media statement.  It was as factually inaccurate as it was ill-advised on so many levels as will become apparent over the coming legal proceedings.  One particularly misleading point in the statement was “refusal to subpoena the most critical witness”.  While I have no specific information about the actions of the State Attorney’s office nor the Grand Jury and I am not an attorney –  even I know that the State Attorney cannot “subpoena” someone without granting them immunity.  I am certain that the State Attorney “invited” all Mr. Butterworth’s so-called witnesses to address the Grand Jury, but they chose not to do so without immunity.

I am certain that, contrary to Butterworth’s statement, the Grand Jury carefully did their duty and considered all the evidence as well as any exculpatory explanations before indicting.   The point simply is this, these specific sunshine violations were not isolated events and are regular occurrences at Broward Health.  I am convinced that the State Attorney will be able to show a pattern of indifference if not outright animosity to transparency, and the public’s right to know at Broward Health, our public hospital system.

Sadly, I don’t think the indicted will do anything but shamefully spend our tax dollars and continue to act disregarding the public’s right to know, and conducting the Broward Health’s business like a private republican enclave that is inconvenienced by its public responsibilities.  When will the Broward Health Board and senior management realize that it is a Public Hospital System, and not Governor Scott’s private cat box?

Here are some of the published articles about the indictments, in case you missed any of them.

Indicted Broward Health officials attack Broward state attorney’s case
WPLG Local 10
Capasso emailed the attorneys’ statement to all Broward Health employees on her account. All four officials are still in their offices. Gov. Rick Scott, who appointed Rodriguez and other indicted board members, and is known to have a friendship with Barrett, is reviewing the case to determine whether he …

Indictments could disrupt Broward Health’s search for new CEO
Becker’s Hospital Review
Fort Lauderdale, Fla.-based Broward Health board members had planned to interview finalists for the position of CEO on Jan. 22. However, that process may be disrupted, as board chairman Rocky Rodriguez and four current and former leaders of the health system are scheduled to be arraigned on …

Criminal Charges For Broward Health Officials Could Affect CEO Search
Health News Florida
Broward Health operates five public hospitals that serve the majority of people living in central and northern Broward County. This week, five of the.

Officials At Broward Health Indicted On Charges Of Sunshine Law Violations
Top officials on the Broward Health System’s board have been indicted on counts of violating Florida’s open government law. … But a grand jury doesn’t think officials at Broward Health followed that law in late 2016 when individual meetings were held by board members just before a vote to fire then …

Criminal Charges For Broward Health Officials Could Affect CEO Search
Broward Health operates five public hospitals that serve the majority of people living in central and northern Broward County. This week, five of the agency’s board members were indicted on charges of violating Florida’s open government law, also known as the Sunshine Law. The charges could affect …

5 Broward Health execs face criminal charges for conspiring to fire former CEO
5 Broward Health execs face criminal charges for conspiring to fire former CEO. by Ilene MacDonald |. Dec 14, 2017 10:28am. gavel and books. Attorneys for the hospital district and the organization’s general counsel said in a media statement that “this is the most misguided prosecution we have ever …

Power Lunch: Just one Irma-related price-gouging complaint settled
Sun Sentinel
When it arraigns, it pours: Leaders at Broward Health had been looking forward to Jan. 22, when they would interview candidates for the chief executive officer, the Sun Sentinel’s David Fleshler reports. Now, that’s the date many of them will be arraigned on charges of violating Florida’s open-meetings law.

Criminal Charges For Broward Health Officials Could Affect CEO Search
Health News Florida
Broward Health operates five public hospitals that serve the majority of people living in central and northern Broward County. This week, five of the.

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