A few days ago, I attended and videoed a 43-minute status hearing on the alleged sunshine law violations of Broward Health former commissioners Rodriguez, Capasso, Robinson, and current commissioner Ure as well a former Broward Health corporate counsel Barrett before the honorable Judge Pole in Broward County Court.
This multiple sunshine cases and its companion case relating to the alleged improper termination of former Broward Health CEO Paulene Grant is particularly important because not only are taxpayers paying all the attorneys on all the sides of this litigation, but the combined legal cost of these cases are in the millions of dollars. Millions of dollars wasted on making a meaningless point that could pay for medical services in our community instead are flowing into the bank accounts of a few well-connected attorneys.
As I begin this article, there is a very important distinction between the current governance of the Broward Health seven-member Commission which is all new except for Commissioner Ure, and the current leadership of the senior enterprise management which is similarly new. Unfortunately, this litigation is a very expensive and on-going legacy mess left for the current governance and leadership to ‘clean-up.’
In brief, here is some context to the story.
You will recall that in late 2015, Dr. ElSinadi then the CEO of Broward Health allegedly committed suicide. Subsequently, some ‘acting’ Broward Health CEO’s were appointed and terminated. One such CEO was Paulene Grant, the affable and competent CEO of the Broward Health North hospital in Pompano Beach. Before Ms. Grant’s appointment as acting CEO for the Broward Health enterprise, an anonymous tip came into the tip line that alleged that Ms. Grant was getting a kickback from some physicians for putting them on a call list rotation for work at Broward Health North. But this kickback was not a bag of cash, or direct but indirect as part of her overall incentivized compensation package as a senior executive at Broward Health. The argument essentially was that in return for the physicians bringing in business to the hospital she managed – the hospital did better financially, and she thereby received a performance bonus.
So nothing happened with this “tip” for about nine months when, coincidentally, acting CEO Grant began to object and ‘push-back’ on some corporate counsel’s conduct and ‘initiatives.’ At that point, counsel Barrett initiated an ‘independent’ investigation into Ms. Grant by hiring an attorney on 8/24/16. In retrospect, it appears that counsel Barrett took this action both without authority or the knowledge of the Board of Commissioners.
On November 16, 2016, Barrett’s ‘independent’ investigation concluded with the determination that there was a probable ‘reportable event’ related to Ms. Grant’s past conduct. The finding of a ‘reportable event’ is significant because based on the 2015 settlement with the Federal Government, not only must the issue be reported to the government – but by the terms of the settlement, the person responsible for a reportable event may not have Broward Health employment. But Ms. Grant was the acting CEO of the entire enterprise, so what now?
An important distinction that Counsel Barrett and her household of captive attorneys would fail to explain to the Board of Commissioners over the subsequent weeks is that it is the Board that decides legislatively whether an event is reportable – not a private attorney on counsel Barrett’s private mission. In fact, in somewhat clearer hindsight, the allegations of kickback violations were likely unfounded or at worst so remote as to be a nullity.
But back to the story.
At this point, Ms. Grant knows nothing of the investigation nor its findings. Only Counsel Barrett and the attorney she hired has this information. But now, counsel Barrett has a problem – who will replace Ms. Grant as acting CEO and be ‘supportive’ to Barrett’s ‘leadership?’ ( I will not get into the multiple machinations Council Barrett used to hopelessly muck up the national search for a permanent Broward Health CEO costing hundreds of thousands of dollars because that’s a whole other article).
Cultivating close relationships with Broward Health Board, counsel Barrett carefully served equal portions of insight and information to the hungry Board members. A particularly close friend was Commissioner Beverly Capasso.
Now the Sunshine case begins to take root. The starting point for the prosecutors is something called ‘specific intent.’ Counsel Barrett ‘specific intent’ is to get rid of acting CEO Grant who is too independent and replace her with friendly Commissioner Capasso who had some experience as a CEO at Jackson Health previously and importantly at the time was Barrett’s good friend and ally. So that’s the end game, the Board appoints Capasso to replace Grant. Of course, before that happens, Grant has to be unceremoniously escorted out using the Federal Corporate Integrity (CIA) as the sword thus creating a leadership crisis. Acting CEO Grant still knows nothing of the investigation nor its orchestrated findings.
Here is how it should have happened. Barrett as Board’s counsel would ask the Chair to call an emergency meeting of the Board so that she and others could present the findings of the Grant investigation, answer questions and afford the Board the opportunity to take prudent action in public.
But that is not what happened. Instead, Barrett and friends hatched a convoluted process whose sole purpose looked like it was to insulate Barrett legally and allegedly violated both the spirit and the letter of the open government sunshine laws.
What did happen is presented in Barrett’s motion to dismiss the indictment against her. Here she explains, without providing dates – that she ‘relied’ on Mylka Raizen, allegedly one of Barrett’s best friends and past legal partner and Kevin Hyde both lawyers of the firm of Foley & Lardner to advise her. This itself is interesting because presumably, Foley & Lardner’s client was Broward Health and not Lynn Barrett. Among the questions that will probably never find an answer is to what the extent was Ms. Raizen and Mr. Hyde were co-conspirators with Barrett in the alleged sunshine violations and Barrett’s scheme to replace Grant with Capasso. I’ll call Ms. Raizen and Mr. Hyde Barrett’s pals.190115BH-Barrett_Motion2Dismiss
So, Barrett’s pals allegedly advised Barrett to hire a Mr. Selden to accentuate the crisis with the purported ‘reportable event’ in private (read not open to the public) briefings to Board Commissioners which would take place immediately after the commissioner’s received their briefing from the so-called independent investigation on the orchestrated findings. Of course, Barrett, her pals, her ‘independent attorney, and of course Mr. Selden had to discuss the matters that were about to be briefed in the private meetings either directly or indirectly amongst themselves. To think otherwise would make no sense. Then came the private meetings with commissioners. These private meetings occurred in odd places; Weston Hotel, Mario’s Catalina restaurant, on the phone, etc.. These private briefings constitute what the State Attorney alleges are ‘de facto meetings’ in violations of Florida’s sunshine laws.
How can anyone objectively determine what happened at these private briefings? One really can’t rely on the testimony of those in attendance because why would they incriminate themselves? How could one characterize a careful manipulation with a specific intent? How does one describe a wink, a nod, a smile?
As it turns out – it’s not so hard. We’ve all heard that the “proof of the pudding is in the tasting” or that if there is “no snow on the ground when you go to bed, and snow on the ground when you wake up – then sometime during the night, it snowed.” The proof of a de facto meeting is in the perverse spontaneous board unanimity in the public meeting that follows.
Notably, the briefings could and should have been conducted in one public meeting. Instead, the Board meeting following these so-called briefings strangely uniquely proceeded without comment, question or debate, the Broward Health Board terminated Acting CEO Grant, appointed Commissioner Capasso as acting CEO and authorized the reporting of the so-called independent “orchestrated’ reportable event. Without comment, question or debate.
A reasonable person could reasonably deduce that something was decided before the public meeting in violation of the spirit and letter of Florida’s sunshine laws, but the improper conduct was not equally shared by the five people ultimately indicted.
I have known then Chair Rocky Rodreguez for over 35 years, and I know that he would never knowingly violate what he understood was his public trust. Similarly, Commissioner Ure, a relative newbie public organization board member has a right to depend on the instructions from Broward Health’s corporate Counsel – Lynn Barrett. I do not believe that any reasonable person would believe that either of these lay people – Rodreguez or Ure had the ‘specific intent’ to violate their public trust. Accordingly, the State Attorney should drop their case against these two in exchange for their truthful testimony and cooperation.
Commissioner Linda Robson, also indicted was an appointed member of Florida’s Ethics Commission, an attorney, and her firm has and continues to do some work for Broward Health. Ms. Robson should have know better! The State Attorney should let Linda Robson plead no-contest with adjudication withheld, provided she agree not to serve on a public board for some time.
Commissioner Beverly Capasso became the acting CEO of Broward Health and materially and financially benefited from the improper Board conduct. As acting CEO she was to sow the seeds for the District’s current Rennaissance. Although she was likely an unwitting pawn in Barrett’s game – she was to become a serious miscalculation for Barrett. Acting CEO Capasso was to act entirely in the best interests of Broward Health and the community as was the ultimate undoing of Barrett at Broward Health. For this, and the leadership she boldly put in place, Capasso deserves both forgiveness and our thanks. Like Robson, the State Attorney should let Ms. Capasso plead no-contest, with adjudication withheld, in exchange for her truthful testimony and cooperation and agree not to serve on a public board for some time.
Now we come to Barrett. I would hope that the State Attorney throw the book at her, not only before the courts but also in front of the Florida Bar as well. An example and perhaps new law should result in Florida that improper conduct by public board legal counsel cannot be tolerated. That said, there is some tricky issue in prosecuting Ms. Barrett – and so our thanks should go to the State Attorney and Assistant State Attorney Tim Donnally in particular in their part in protecting the public interests from devious and manipulative attorney conduct.
The case raises an interesting question about legal advise given privately to sunshine board members. Presumably, the same or consistent advice given to each board member might presuppose a predictable result in a public meeting. My understanding is that private advice which resulted in a predictable result in a public meeting does not necessarily offend the Sunshine laws provided that there was no polling or disclosure of other commissioners comments. If I’m right, then Counsel Barrett could have simply given her advice directly to Board Members, and advocate for Capasso’s appointment as a permissible legal action. Done. Lawful. Instead – Counsel Barrett and her commission clients are indicted for sunshine law violations.
As to Barrett; “Oh, what a tangled web we weave, when first we practice
On October 31, 2018, Broward Health corporate counsel Lynn Barrett was terminated by a unanimous vote of the Broward Health Board of Commissioners.
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