In the 26-page document filed Thursday, Bert Fish and the hospital district asks the court for monetary damages, including $3.4 million in out-of-pocket . . . → Read More: SE hospital district files malpractice suit over failed Bert Fish merger]]> A year after a judge threw out a merger for Bert Fish Medical Center, the Southeast Volusia Hospital District has filed a lawsuit claiming legal malpractice against their former attorney and his law firm.

In the 26-page document filed Thursday, Bert Fish and the hospital district asks the court for monetary damages, including $3.4 million in out-of-pocket expenses, from Jim Heekin and the Orlando-based law firm of Lowndes, Drosdick, Doster, Kantor and Reed, P.A.

The lawsuit follows a February 2011 trial challenging the merger brought by the Bert Fish Foundation, a philanthropic organization that gave the hospital to the public district in 1966. Judge Richard Graham ruled the 21 closed-door meetings held over 16 months leading up to the medical center partnering with Adventist Health Systems violated the state’s Sunshine Law.

Based on Graham’s ruling, the hospital district and its attorney Louis Mrachek of West Palm Beach claim the merger was rescinded because of Lowndes’ “failure to properly advise the Plaintiffs through the merger process to comply with the Florida Sunshine Law.”

The suit backs up its allegation using testimony from the trial before Graham. It says Heekin testified the meetings where the merger was discussed began with him or someone from Lowndes advising the boards they were exempt from the Sunshine Law and the board members followed that advice.

Heekin also testified Adventist paid $40 million for an $18 million hospital, the lawsuit states. Bert Fish officials claim the failure of the July 2010 merger cost the medical center and district almost $22 million.

The suit goes on to say Heekin testified he had some personal responsibility for not having identified Sunshine Law violations had occurred and that he admitted he did no specific research before any of the 21 meetings to determine whether they could be legally closed.

The lawsuit also claims Heekin said in court he “informed Plaintiff’s they may have a malpractice claim against him.”

In his lawsuit Mrachek levels claims of professional negligence, breach of contract and breach of fiduciary duty against Lowndes.

When reached by telephone for comment on the lawsuit, Dan Gerber, attorney for Rumberger Kirk & Caldwell, which is representing Lowndes, said someone would issue a statement at a later time. No statement was immediately forthcoming Friday afternoon.

Mrachek could not be reached for comment and Bert Fish Chief Operating Officer/President Steve Harrell did not have much to say on the legal action.

“I have not read it, but I know pre-suit (settlement) negotiations were going nowhere and this was the best next step,” Harrell said by telephone Friday afternoon.

Case in point? Senate Bill 1180, authored by Sen. Mike Bennett, R-Bradenton. This flawed piece of legislation portends negative consequences for the review of developments of regional impact if approved by lawmakers and signed into law by Gov. Rick Scott.

Here are some “lowlights” of this proposal. It would:

• . . . → Read More: Editorial: Florida lawmaker’s proposal would chip away at review process for large-scale developments]]> The frontal assault on Florida’s growth-management laws continues in Tallahassee.

Case in point? Senate Bill 1180, authored by Sen. Mike Bennett, R-Bradenton. This flawed piece of legislation portends negative consequences for the review of developments of regional impact if approved by lawmakers and signed into law by Gov. Rick Scott.

Here are some “lowlights” of this proposal. It would:

• Reduce the ability of reviewing agencies to comment on proposed developments of regional impact.

• Allow local governments to direct larger developments into an alternative review process. (Translation? Reviews that are less thorough and comprehensive.)

• Define any changes to a development order that do not increase vehicular traffic during peak hours or reduce open space and conservation areas as “not substantial deviations” to the proposed project.

These provisions are disconcerting. But here’s the scariest provision in SB 1180: It would provide “an exemption from development-of-regional-impact review for any proposed development that a local government elects not to apply the review process if a comprehensive plan amendment for the development is adopted pursuant to the state-coordinated review process.”

In other words, a majority of like-minded commissioners could pre-empt (and circumvent) the review process for a DRI by approving a targeted, comprehensive plan amendment. Do Floridians really want to put this much authority in the hands of an elected commission — especially for large-scale projects that, by definition, affect residents in two or more governmental jurisdictions?

Perish the thought!

This isn’t the first time Bennett has proposed substantive changes to the state’s review process for developments of regional impact. In 2009, he authored (and the Legislature approved) SB 360. Among other things, this new law revised the definition of existing urban service areas and deleted certain requirements on developers to provide for traffic impact. (For the record, SB 360 was declared unconstitutional in 2010.)

The review of developments of regional impact should be as thorough and comprehensive as possible. Bennett’s latest proposal moves us further away from this objective.

In recent years, the Florida Legislature has been chipping away at the review process for large-scale projects. Lawmakers’ motives — to spearhead economic development and job creation — may be good, but their methods — at least in this case — are unacceptable.

The suit comes after the Health Care District board split 3-3 on Jan. 11 on whether to accept a tentative . . . → Read More: Palm Beach County Health Care District sued by former internal watchdog, who claims retaliation]]> The former compliance officer for the Palm Beach County Health Care District, RoxAnne Harris, has sued the agency, claiming the district fired her in retaliation for launching an investigation that included the hand­ling of email archive security.

The suit comes after the Health Care District board split 3-3 on Jan. 11 on whether to accept a tentative mediated settlement of $85,000 with Harris. Several board members had wanted more explicit language requiring Harris’ confidentiality.

Instead, Harris has sued.

Represented by Joseph Sconzo, a retired FBI agent who investigated public corruption before going into private legal practice in 2010, Harris does not explicitly detail in her lawsuit what federal and state laws she believed had been broken, or who at the Health Care District might have been responsible. It says only that her inquiry concerned “violations of compliance standards contrary to federal and state law.”

On Feb. 8, the board plans to discuss the issue in closed session with its attorneys . Until then, district corporate counsel Peter Sachs said, the district cannot comment on the litigation. The district’s legal response is due Feb. 9.

Harris’ job was to act as an internal watchdog for the district, something required by federal law. She was fired, the suit says, after she was sent to make a case against a manager in the information technology department and instead was told of possible wrongdoing by more senior Health Care District managers.

It was Aug. 10 when the district’s former chief human resources officer, Jannis Muscato, sent Harris to investigate a longtime employee in the information technology department who was accused of operating his own computer business during work hours, according to the suit.

After meeting with the manager, Harris felt “there was a greater issue behind the request to conduct this investigation.” She asked the district’s attorney and chief human resources officer, as well as CEO Dr. Ron Wiewora, to postpone the employee’s planned termination so she could look into the more serious allegations.

According to several former employees, those allegations included a charge that control over the email archives, and the logs of who was accessing them, had been put under the purview of one person, a move that could allow sensitive documents to be changed or deleted undetected. Last spring, as The Palm Beach Post was publishing stories about a questionable nursing home land deal, the district board was discussing putting itself under the oversight of the Palm Beach County inspector general. In addition, the U.S. attorney’s office was beginning to request public records.

Federal law requires agencies that bill Medicare to maintain the integrity of their email archives and to name the security officers given responsibility for those archives. The individual on record as that security officer, Lawrence Decker, said his access had been removed, also. He had raised questions about it, and resigned over that and other issues in October.

“I was the security officer,” Decker said in an interview. “I couldn’t do my job. If something comes up I am supposed to be able to see who is logging in and what they are logging in to do.”

Instead of accepting Harris’ advice to hold off while she investigated, the lawsuit alleges, the district immediately fired the IT employee.

Meanwhile, Wiewora ordered Harris to sit down with the department’s chief information officer, Tracy Legenos, and disclose the allegations made by the fired employee . Harris has said she objected to announcing the start of an investigation before facts were known. Legenos’ and the lawsuit’s accounts of that meeting differ.

“During this meeting, it was discussed that the district was out of compliance with (federal) security requirements due to the security officer’s access to the email archive system,” the lawsuit alleges, continuing, “During this meeting, Tracy became irate and went to Dr. Wiewora.”

In an account Legenos prepared for Wiewora, she alleges the opposite: Legenos said Harris had asked her to sign a form agreeing not to retaliate against her staff, a demand Legenos found “insulting, demeaning and very unprofessional!”

“Her tone and words were very combative; I was actually a bit insulted the way she was assuming I had done something incorrectly,” Legenos wrote.

Five days later, Harris was called into a meeting with Wiewora and the district’s staff attorney, and was terminated, the lawsuit alleges. Wiewora signed papers ordering Harris to return her $5,000 moving stipend, since she had been there less than 90 days, public records show.

Harris reported to the board, not to the CEO, and so after her firing she appealed to then-district board Chairman Jonathan Satter. On the advice of Sachs, Satter reinstated her, put her on paid leave, and brought in labor law firm Jackson Lewis to investigate. Sachs said the firm would not be issuing a written report on its investigation, but would deliver its findings to the board behind closed doors on Feb. 8. He said the chief human resources officer, Jannis Muscato, is no longer with the district.

That merger became the focus of what some have called the largest violation of the state’s . . . → Read More: SE Volusia hospital board votes to file suit over legal advice on failed merger]]> NEW SMYRNA BEACH — The Southeast Volusia Hospital District board of commissioners voted unanimously Thursday night to file suit for legal malpractice against the firm of its former attorney for faulty advice he gave about its merger with Adventist Health Systems.

That merger became the focus of what some have called the largest violation of the state’s Sunshine Law ever challenged in court, and a judge ordered it undone.

“I am not at all optimistic we will negotiate a settlement,” Louis Mrachek, the hospital district’s litigation attorney, said by conference call during Thursday’s board meeting. “We have not even gotten a counter-offer.”

Board members voted in August to pursue a legal malpractice claim against Jim Heekin of the Orlando firm Lowndes, Drosdick, Doster, Kantor and Reed, for his advice to keep the public out of talks about Bert Fish Medical Center partnering with Adventist.

Circuit Judge Richard Graham threw out the 2010 deal, saying the 21 closed meetings held over 16 months that resulted in the merger violated the state’s Sunshine Law.

The Bert Fish Foundation, a philanthropic organization that gave the hospital to the public district in 1966, had filed suit against the merger because of the closed meetings. Graham made his ruling after a five-day court proceeding in February 2011.

The hospital district incurred $3.4 million in administrative and legal fees as a result.

In a letter to Heekins’ firm last year, Mrachek sought to recover not only those out-of-pocket expenses, but an additional $19.1 million in lost income to the hospital. But he said Lowndes’ would not budge.

“There is no way to move this matter forward without filing the lawsuit and starting the clock forward,” Mrachek told the board.

Board member Jackie Hercheck moved to proceed with the suit, backed with a second from board member Joe Benedict.

Mrachek said he plans to keep the complaint as simple as possible, to preclude as many delaying motions as possible. He anticipated it will be filed next week and said he is shooting for a trial date within six weeks.

At the same time as the lawsuit moves ahead, Mrachek said he will continue to push for a settlement.

“I believe this will move forward as quickly as possible,” he said. “We will get this thing moving post haste.”

The vote comes after the board met in December and continued that meeting into Jan. 17. Minutes of those meetings show Mrachek reported Daniel Gerber, representing Heekin’s firm in the malpractice litigation, stated: “Any alleged damages greater than the district’s or Bert Fish Medical Center’s past out-of-pocket expenses are not recoverable.”

Some of Bert Fish Medical Center’s costs are underwritten by taxpayers from Edgewater, New Smyrna Beach, Oak Hill and a portion of Port Orange. The hospital district’s tax rate of $3.30 per $1,000 of taxable value is the highest of any such district in the state.

Special Report: Hospital Wars

The Florida Writers Project features writers from Florida and around the country.

Come hear expert advice on writing and publishing narrative, mass-market fiction, screenplays and anthologies.

Bring your manuscript with . . . → Read More: FSNE, University of Central Florida to host three-day writing workshop]]> The Florida Society of News Editors and the University of Central Florida are partnering to produce a three-day workshop on writing and journalism Feb. 16-18 in Orlando.

The Florida Writers Project features writers from Florida and around the country.

Come hear expert advice on writing and publishing narrative, mass-market fiction, screenplays and anthologies.

Bring your manuscript with you and you can have it reviewed, too.

The journalism seminars features these session on Saturday, Feb. 18:

Pulitzer Prize winner Paige St. John of the Sarasota Herald-Tribune on award-winning journalism in the era of newsroom austerity

Ihosvani “Geo” Rodriguez of the Sun Sentinel and Jonathan Busdeker of the Orlando Sentinel on making the newsroom transition to multimedia journalism

Scott Joseph on starting a post-newspaper career as a blogger

Early bird registration has started. Click here to register now and save.

Circuit Court Judge Howard LaPorte ruled that Miller, as the county’s legal representative, had intentionally prevented Harris from obtaining records she was entitled to.

He gave Miller 48 hours to make good on Harris’ request . . . → Read More: Court orders attorney to release public records]]> DeFUNIAK SPRINGS — Citizen activist Suzanne Harris secured a public records law victory Monday over George Ralph Miller, the former Walton County attorney.

Circuit Court Judge Howard LaPorte ruled that Miller, as the county’s legal representative, had intentionally prevented Harris from obtaining records she was entitled to.

He gave Miller 48 hours to make good on Harris’ request for records pertaining to the controversial Chat Holley land deal and ordered Miller to cover the cost of Harris having to drag him into court.

“The Legislature says it’s important when some-one makes a public records request that you listen and you better respond quickly,” LaPorte said in handing down his decision. “I don’t write the laws, but I’m required to enforce them.”

Harris, represented by attorney and state Rep. Matt Gaetz, sued Miller in January after he failed to turn over records requested Nov. 23.

Court testimony indicated the first correspon-dence between Miller and Harris or her representatives was early last week.

The suit accuses Miller of violating the Sunshine Law both through his failure to turn over the documents and by failing to properly acknowledge receipt of the public records request.

Gaetz argued that LaPorte had a duty to rule in his favor. Failure to do so, he said, would send a message to other government entities that it is OK to withhold records and ignore requests for public documents.

“This is a huge win for the citizens of Walton County,” Gaetz said following the ruling. “It sends a crystal clear message that nobody can play games with open government. I hope this ruling doesn’t just help Ms. Harris, but that it helps the media and any other citizen.”

Miller was the first to take the stand at Monday’s emergency hearing on the public records issue.

He testified that he didn’t receive a public records request until sometime after Christmas and that he had other things, including the loss of his job as Walton County attorney, on his mind when he received it.

His attorney, Rusty Sanders, argued that Miller had complied with the public records request and that he’d met a vague state standard for timely compliance.

“I’m not too happy with the ruling,” Miller said as he left the Walton County Courthouse. “But I will say everything I said was the truth.”

The Harris suit against Miller was an opening drama in a much larger production.

She has sued the Walton County Commission in what Gaetz once called “an action to pre-serve the dignity of Florida’s celebrated Sunshine Law.”

All five county commissioners and County Administrator Greg Kisela were represented by attorneys at Monday’s hearing. The lawyers paid close attention, many taking notes, as the courtroom drama played out.

Harris’ legal action against the county specifically targets the commission’s failure to do what was necessary to prevent “the irregular and unlawful activities” it alleges occurred in the course of a county land purchase known colloquially as the Chat Holley transaction.

In that transaction Bayside Properties LLC, a company owned by developer Lloyd Blue, made an estimated $345,000 on the sale of land for a traffic light. The lawsuit seeks reimbursement of those funds.

The lawsuit also demands that the county be required to seek repayment of all funds it paid to Miller, who was retained by the county to negotiate the Chat Holley transaction.

The legal action claims Miller was retained illegally to negotiate the land deal for the county and states he committed acts favoring Blue he knew or should have known were illegal. Miller was terminated by the county as the Chat Holley drama unfolded.

Harris has defeated Walton County before in a court case involving Sunshine Law violations.

In December 2009, the county agreed to settle the first Harris suit and as part of the agreement signed on to place itself under court scrutiny.

Any future county violations of public records law could be met with contempt charges, under terms of the first court ruling.

Gaetz called his win in court Monday “a beginning.”

“I think the good old boy days are coming to an end in Walton County,” he said. “Mr. Miller has been an institution in Walton County for longer than I’ve been alive. The fact he was called to task sends a message to others who may have been playing fast and loose.”

Read more: http://www.nwfdailynews.com/articles/lawsuit-47095–.html#ixzz1lADB4W3w

BY LOUIS COOPER Pensacola News Journal

The group charged with designing an organization to replace TEAM . . . → Read More: Pensacola News Journal: Santa Rosa dismantles TEAM]]> After a five-year fight, TEAM Santa Rosa, an organization working without a contract, operating outside of the sunshine and allotting members grants, is being dismantled and a new entity will be formed to take its place — evidence of how citizen activism works.

BY LOUIS COOPER
Pensacola News Journal

The group charged with designing an organization to replace TEAM Santa Rosa will consist both of people who served on TEAM’s board and some of the most ardent critics of the organization.

The Santa Rosa County Commission today voted unanimously to form a 15-member Economic Development Transition Committee that would meet in the next 45 days to draft a plan for economic development that will replace the TEAM Santa Rosa Economic Development Council.

Each county commissioner appointed three people to the committee. One appointee each was that commissioner’s representative to the old TEAM board.

The other two were up to the commissioner’s discretion.

Other current board members appointed to the new committee include Phillip Wright, the chief executive officer of Santa Rosa Medical Center, who was appointed by Commissioner Don Salter; and Claude Duvall, who was tapped by Commissioner Lane Lynchard.

Commissioner Jim Melvin, however, appointed Jerry Couey, a Milton resident who has hounded the commission about needs to reform economic development. Commissioner Jim Williamson appointed Pace resident Alan Isaacson, another frequent critic of TEAM.

Here is a full list of the members of the Economic Development Transition Committee and which commissioner appointed them:

Commissioner Jim Williamson
• Ed Fortune, Pace businessman/former legislator (Williamson’s current appointee to TEAM)
• Alan Isaacson, Pace minister
• Don Richardson, Gulf Breeze resident and president of the United Peninsula Association

Commissioner Bob Cole
• Jerry Goldstein, partner with Salomon-Goldstein Properties in Gulf Breese (Cole’s current appointee to TEAM)
• Rick Paschall, owner of Ameriprise in Milton
• Kim Macarthy, owner of the Copper Possum

Commissioner Don Salter
• Ferd Salomon, partner with Salomon-Goldstein Properties in Gulf Breese (Cole’s current appointee to TEAM)
• Phillip Wright, chief executive officer of Santa Rosa Medical Center in Milton (current corporate member of TEAM’s board.)
• Josh Durst, Pace accountant

Commissioner Jim Melvin
• Carol Boston, Navarre resident
• Jerry Couey, Milton resident
• Laurie Gallup, owner of Navarre Properties
(Melvin’s current appointee to the TEAM board, Steve Hering, declined due to other commitments)

Commissioner Lane Lynchard
• Beverly Zimmern, mayor of Gulf Breeze (Lynchard’s current appointee to TEAM)
• Claude Duvall, East Milton business owner (current corporate member of TEAM’s board).
• Jeff Helms, vice president of Atkins engineering former chairman of Florida’s Great Northwest (former member of TEAM’s board)

LEGISLATIVE ALERT

26 January 2012

We’re still sing-sing-singing along on HB 1305 and SB 1464!

A couple of weeks ago, we sent out an ALERT on these two VERY GOOD bills sponsored by Representative Janet Adkins (HB 1305) and Senator Don Gaetz (SB 1464).

In short, . . . → Read More: First Amendment Foundation: Bills would make officers-elect subject to open government requirements]]> FIRST AMENDMENT FOUNDATION
336 E. College Avenue, Suite 101 Tallahassee, FL  32301-1554
(800) 337-3518 or (850) 222-3518

LEGISLATIVE ALERT

26 January 2012

We’re still sing-sing-singing along on HB 1305 and SB 1464!

A couple of weeks ago, we sent out an ALERT on these two VERY GOOD bills sponsored by Representative Janet Adkins (HB 1305) and Senator Don Gaetz (SB 1464).

In short, this legislation creates s. 119.035, F.S., requiring officers-elect, upon election to office, to:
1) Adopt and implement reasonable measures to ensure compliance with the public records law;
2) Follow public record retention policies and procedures of the office to which he/she was elected;
3) Ensure that transition emails be preserved so that the public can have access; and
4) Require the officer elect to turn over all transition records to the records manager in the office to which he/she was elected.

The legislation also amends the sunshine law, s. 286.011, F.S., to make it crystal clear that officers-elect are subject to open meetings requirements.

A Little History:  In 1973, the 3d District Court of Appeal held that members-elect of boards or commissions are subject to the Sunshine Law.  [Hough v. Stembridge, 278 So.2d 288]

Now, it would be a bit absurd to say an officer-elect is subject to the open meetings law and not the public records law, thus we have extrapolated from the 3d DCA decision that officers-elect are also subject to the access requirements of chapter 119, the public records law.  So, for the past 40 years, those elected to office have been subject to Florida’s open government laws from the moment the election is certified and these two bills are simply CLARFIYING current case law.

Jump forward to 2011:  Shortly after Governor Scott took office, a number of news reporters made public records request for the email correspondence of members of the Governor’s transition team. The Team had contracted with a private vendor to provide email services and that vendor had deleted all transition team emails shortly after Governor Scott took office.

[NOTE:  Just because the emails have been deleted doesn't mean they're gone for good, and the Governor's staff is working diligently to recover the emails, and to date has made good progress. We'll have more information on this project a little later.]

In an attempt to make sure that this doesn’t happen again with future governors and other officers-elect, Governor Scott and his staff have proposed legislation that addresses the issues of access and retention of what are clearly public records and . . .

VOILA!
HB 1305 and SB 1464 were introduced.

HB 1305 passed unanimously out of the H. Government Operations Subcommittee yesterday and is now in H. Government Appropriations Subcommittee. There will be one more stop before going to the House floor.

SB 1464 is scheduled for consideration by the S. Governmental Oversight and Accountability Committee this afternoon; if it passes, there will be one more committee hearing before going to the full Senate.

BUT some are sounding a SOUR note and now these bills need YOUR help if they are to get to the Governor’s desk!

Even though we’re told that this good-government legislation is on the Governor’s priority list, I’m hearing rumors of push-back from cities and counties.

WHY?

As we said, officers-elect have been subject to our open government laws for the past 40 years and these bills simply codify good case law.
[cid:image003.jpg@01CCDC23.635B5DC0]

So please help Governor Scott and the bill sponsors continue to sing the SUNSHINE SONG
by voicing your support for this good-government legislation.

Governor Rick Scott: 850/488-7146 or email Rick.Scott@eog.myflorida.com

Representative Janet Adkins:  850/488-6920 or email janet.adkins@myfloridahouse.gov

The Miami Herald Media Company announced plans Thursday to move its headquarters to a Doral building that once housed the U.S. Southern Command. The company will build a new . . . → Read More: Miami Herald Media Co. moving headquarters to Doral complex]]> Eight months after selling its downtown Miami location, The Miami Herald finalized a deal to lease office space and build a new printing plant in Doral.

By Elaine Walker

The Miami Herald Media Company announced plans Thursday to move its headquarters to a Doral building that once housed the U.S. Southern Command. The company will build a new printing plant on property it is buying next door.

The Herald — publisher of newspapers, websites, multimedia content and magazines in English and Spanish — signed a 15-year lease on the two-story office building, which will house its business and news operations. Construction is expected to begin on the printing plant in April; the move is slated to be completed by May 25, 2013.

In an editorial just a few days ago we noted the tendency of state lawmakers to impose Government-in-the-Sunshine mandates on city and county commissions that they wouldn’t dream of following themselves.

Since we made that observation, Tallahassee’s “do as we say, not as we do” contempt for the principles of open government has . . . → Read More: Editorials: Prison privatization should be public]]> The Gainesville Sun: ‘It stinks’

In an editorial just a few days ago we noted the tendency of state lawmakers to impose Government-in-the-Sunshine mandates on city and county commissions that they wouldn’t dream of following themselves.