Miami U.S. Attorney’s Office, FBI accused of spying on defense in Medicare fraud case

By Dan Christensen, FloridaBulldog.org 

Judge Cooke has set a June 8 hearing to consider alleged wrongdoing by federal prosecutors and agents.

Judge Cooke has set a June 8 hearing to consider alleged wrongdoing by federal prosecutors and agents.

In a stunning twist in a long-running Medicare fraud case, both the Miami U.S. Attorney’s office and the FBI stand accused of spying on a defendant’s lawyer by illegally and secretly obtaining copies of confidential defense documents.

Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”

The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.

Miami attorneys Howard Srebnick and Rossana Arteaga-Gomez represent Schapiro and filed the motion, which asserts that the U.S. Attorney’s Office has for several weeks been investigating itself in the matter.

Miami U.S. District Judge Marcia G. Cooke held an initial hearing Tuesday that was continued until June 8 at 1:30 p.m. The judge, in an order, has asked both parties to respond to this extraordinary question: “What remedies, if any, are available to the court were the court to find that the described conduct in defendant Schapiro’s motion is a systemic, consistent and/or pervasive practice of or on behalf of the United States Attorney’s Office?”

A spokeswoman for Miami U.S. Attorney Wifredo Ferrer would not be interviewed. However, late Thursday night prosecutors filed court papers confirming that an internal probe is underway and asserting that defense arguments are “based on erroneous accusations and insinuations.”

Howard Srebnick, left, and James V. Hayes

Howard Srebnick, left, and James V. Hayes

“Despite the charged language this is not a case about intrusion into the attorney-client relationship, eavesdropping or sneaking into the defense camp,” wrote Assistant U.S. Attorney James V. Hayes and Justice Department fraud attorney Lisa H. Miller.

Defense attorney Srebnick did not return a phone call seeking comment.

 Specifically, the court papers allege that Fort Lauderdale-based copying service Imaging Universe and president Ignacio E. Montero provided the government with CDs containing duplicates of documents Schapiro’s defense team culled from 220 boxes of evidentiary records in preparation for trial. Federal agents had seized those records from the mental-health clinic Biscayne Milieu, where Schapiro worked.

“Covertly cloning defense counsel’s work-product to obtain a tactical advantage is nothing short of ‘shocking to the universal sense of justice’ mandated by the Due Process Clause of the Fifth Amendment,” Srebnick and Arteaga-Gomez wrote. “To the extent that the prosecution team can infer from Dr. Schapiro’s selection of discovery documents his thought process, the government has violated his Fifth Amendment right not to be compelled to be a witness against himself. This intrusion into the attorney-client relationship has also violated Dr. Schapiro’s Sixth Amendment right to the effective assistance of counsel.”

The government responds

The government’s Thursday night response acknowledged that Imaging Universe did supply the FBI with duplicate CDs of what the company had copied for Schapiro’s defense team, but said the discs “were never requested by any agent, prosecutor or anyone else on the government’s behalf.”

Prosecutors Hayes and Miller also stated that they were unaware of the duplicate CDs until an FBI agent disclosed their existence in late April. They said that when they found out they immediately told “Montero to stop and began an internal inquiry.”

“To date it has found that there was simply no pervasive practice of receiving or recording defense discovery, and that it was not a widespread or institutionalized practice,” says the government’s response.

Nova Southeastern University constitutional law professor Robert Jarvis was skeptical of the defense’s sensational claims, but said that if the allegations prove true it could upend hundreds of criminal cases, free untold defendants and potentially result in criminal charges against government officials responsible for violating defendants’ rights.

“This opens a huge can of worms,” Jarvis said. “It’s potentially catastrophic for the government and I would think that the [U.S.] Attorney General would be swooping in on this. There are 95 judicial districts. If it happened in this office, you have to wonder if it’s happening in any others.”

Schapiro, 70, Sonia Gallimore, 74, both Broward residents, and Marlene Cesar, 64, of Allentown, PA., were indicted on charges of health care fraud and conspiracy and making false statements in September 2014. According to the indictment, they and other alleged co-conspirators submitted more than $55 million in phony Medicare claims through the Miami clinic, Biscayne Milieu, collecting more than $11 million. Previously, about 25 other owners and employees of the clinic pleaded guilty or were convicted of healthcare fraud.

On Tuesday, attorneys for Gallimore and Cesar filed paperwork seeking dismissal of their charges, claiming their clients’ rights were similarly violated by the alleged scheme.

The defense motion says that between late 2014 and last month, Schapiro’s lawyers repeatedly visited an FBI warehouse in Miramar where discovery documents are kept for review. During Arteaga-Gomez’s first visit to the warehouse federal agents told her that if she wanted to copy any documents she would have to use Imaging Universe, the motion says.

Since the indictment, Imaging Universe has charged Schapiro $8,200 to produce nine sets of discovery documents to his defense team. The motion identifies those records to include a dozen CDs containing approximately 1,140 PDF files, many with multiple pages.

The motion contends that company president Montero “lied” to Arteaga-Gomez about the copying process, and instead of making sure the government did not see the defense’s hand-selected files, provided FBI case agent Deanne Lindsey with duplicate copies.

Montero did not respond to a detailed voicemail message seeking comment.

Prosecutor discloses FBI received defense CDs

Hayes, the federal prosecutor on Schapiro’s case, first informed Srebnick and his associate that agent Lindsey “had been surreptitiously receiving the CDs” on April 22, according to the defense motion.

“Hayes proposed to immediately destroy the CDs,” but the lawyers asked instead that he give them to the defense, “which he did,” the motion says.

Hayes declined to be interviewed about the matter.

Arteaga-Gomez phoned Montero on April 25 to ask who had told him to provide copies of the CDs to the government. Montero, the motion says, answered that an “agent” told his office manager to do it. “Mr. Montero then stated that he had been providing to the U.S. Attorney’s Office for the past 10 years duplicate copies of the discovery documents selected by defense counsel in other cases.”

Montero also forwarded to Schapiro’s defense an April 21 email he sent to a healthcare-fraud paralegal in the U.S. Attorney’s Office, stating that he’d provided the Justice Department with duplicates of defense records “since 2006.” Montero added that both his old company, Xpediacopy, and Imaging Universe had done it.

If so, the alleged government misconduct spanned the administrations of three Miami U.S. Attorneys – Alex Acosta, who served from 2005-2009, Jeffrey Sloman acting U.S. Attorney from 2009-2010 and Wifredo Ferrer, who took over in May 2010.

Srebnick and Arteaga-Gomez wrote that they’ve recently had “multiple conversations” about the matter with Miami federal prosecutors and their supervisors.

“The U.S. Attorney’s Office has admitted that Agent Deanne Lindsey had been receiving copies of the CDs and had been keeping the duplicate CDs in a folder as she received them,” the motion says. Lindsey also “confessed to opening four of those duplicate CDs” looking for files, copying and pasting files onto her own CDs and providing “those new CDs to the government’s expert witness for trial preparation,” the motion says.

The prosecutors’ response sought to cast Lindsey’s contact with the records in less threatening way.

Prosecutors notified the defense last week that Montero had “confessed to lying to Rossana Arteaga-Gomez about the discovery process” in order to hide what was happening, the defense lawyers wrote.

“That the government-contracted copy service misled Ms. Arteaga-Gomez in order to cover-up the office-wide policy makes this case especially egregious,” the motion says.

Details about the size, terms and duration of Imaging Universe’s contract were not immediately available. The prosecutors’ response, however, said the contract is between Imaging Universe and the Government Publishing office.

Connections, conflicts and $600K in deal criticized by Miami-Dade schools auditor

By Francisco Alvarado, FloridaBulldog.org 

Doral College executives, State Sen. Anitere Flores, left and Rep. Manny Diaz Jr.

Doral College executives, State Sen. Anitere Flores, left and Rep. Manny Diaz Jr.

Since 2013, a non-accredited college employing two Miami-Dade state legislators as its top executives has collected $600,000 in state charter school funds for offering high school students virtually worthless two-year degrees.

The arrangement has drawn criticism from Miami-Dade Public Schools Chief Auditor Jose Montes de Oca, who questioned charter school spending for Doral College’s dual enrollment program, according to a report presented to members of the school board’s audit committee in mid-March.

“The agreements as approved and executed do not contractually guarantee that the high school will receive any benefit from the college in exchange for its payments of public funds,” Montes de Oca wrote. “We are also concerned about what will be the benefit that…students will receive by attending classes at the college.”

The chief auditor cited possible conflicts of interest involving members of the non-profit boards that run Doral College and oversee two participating charter high schools, Doral Academy and Sommerset Academy in Pembroke Pines.

The college and the two high schools have one thing in common. Each is affiliated with South Miami-based Academica, one of the largest charter school management companies in the nation. Academica runs 49 schools in Miami-Dade County, and dozens more in south Florida, California, Nevada, Texas, Utah and Washington D.C.

DO STUDENTS BENEFIT?

“We continue to be concerned that Doral Academy Charter High School’s governing board lacks independence from Academica, its for-profit management company,” Montes de Oca wrote in a Feb. 2 letter to school representatives and an Academica executive. “We also remain concerned as to whether these expenditures of the high school are driven more for the benefit of the college, rather than to maximize the best interests of the high school students.”

The auditor noted that Luis Fusté, vice-chairman of Doral Academy, and Andreina Figueroa, chairwoman of Sommerset Academy, served on the board of Doral College when agreements with the charter schools were approved for this school year and last year.

The principals for Sommerset and another Academica operated charter school also sit on the board of Doral Academy.

Academica representatives declined to comment, instead referring questions to administrators with the college and the charter school.

doralcollegelogoDoral College’s president is State Sen. Anitere Flores, R-Miami, who served as ex-Gov. Jeb Bush’s education czar. She did not return two phone messages and two emails requesting comment.

However, State Rep. Manny Diaz Jr., R-Hialeah, Doral College’s chief operations officer, defended the deals.

“The auditor is picking at something they don’t like that is perfectly legal,” said Diaz, a Hialeah Republican. “We strongly feel we are not only preparing [honor] students to get into Ivy League schools, but also providing access to students who may not be interested in going to college.”

Doral Academy Principal Douglas Rodriguez also dismissed the auditor’s conclusions.

“There is nothing inappropriate going on here,” Rodriguez said. “I’m surprised more people aren’t doing what we’re doing.”

Doral College was incorporated in January 2010, featuring a three-person non-profit board of directors that included Academica executive Victor Barroso, Doral Academy chairwoman Angela Ramos, and Sommerset principal Kim Guilarte-Gil. By September 2010, Barroso was no longer on the board. Ramos and Guilarte-Gil stepped down two years later.

Montes de Oca began raising concerns about Doral College’s reliance on charter school funds in December 2013 after reviewing Doral Academy’s annual financial statement.

Auditors flagged $400,000 in state funds the charter school provided to Doral College for start-up costs in 2012. Montes de Oca claimed Doral Academy’s board did not vote to approve the arrangement until four months after auditors started asking questions about the deal. Montes de Oca also told the School Board the deal “lacked transparency.”

In addition, the auditor questioned a lease agreement between Doral Academy and its landlord, School Development LLC, a company owned by Ignacio Zulueta, who along with his brother Fernando, also owns Academica. Their sister is Academica vice president Magdalena Fresen, wife of State Rep. Erik Fresen, R-Miami, chair of the House Education Appropriations Subcommittee.

The lease agreement had a provision to allow School Development to terminate Doral Academy’s lease early without requiring the landlord to repay $4.5 million in charter school funds that were used to construct new facilities on the nearly three acre campus, including the building that houses Doral College. After the auditor called attention to it, School Development eliminated the early termination clause.

The Zulueta siblings are major contributors to Republican candidates. Last year, the two brothers and their sister each gave the maximum $2,600 donation to the successful congressional campaign of Carlos Curbelo, then a Miami-Dade School Board member.

In 2010, the Zuluetas bundled $2,000 for Flores’ senate campaign and this year have given another $1,500 in support of her reelection.

DORAL COLLEGE HIRES SEN. FLORES

Doral College’s board hired Sen. Flores as president on April 15, 2011 while she was championing a successful bill to create online virtual charter schools. Since that law went into effect, Academica has launched a virtual education division that includes 19 of its charter schools.

In 2012, Flores also supported a failed bill that would have allowed school districts to convert underperforming schools into charter ones.

Flores is currently paid $150,000 a year by Doral College, according to her 2014 public financial disclosure form.

In 2013, Doral College hired Rep. Diaz as chief operations officer post at a salary of $76,250 a year. He has also been a vociferous charter school advocate. Last year, Diaz sponsored a bill that would have severely limited school districts’ control over privately managed charter schools. The bill died on May 2, 2014.

Diaz, a former Miami-Dade Public Schools teacher, coach, and school site administrator for 20 years, denied that his job at Doral College is tied to his support of charter school legislation that would ultimately benefit Academica.

“I don’t see any conflicts,” he said. “All these pieces of legislation are broad and affects everyone in the charter school industry.”

This session, Rep. Fresen, whose wife is an Academica executive, has pushed a controversial proposal that could force school districts to share millions of dollars in construction funds with competing charter schools.

During a tour of Doral College’s building at the Doral Academy campus with this reporter, Principal Rodriguez insisted his high school students in the dual enrollment program are getting a bona fide college experience.

“For instance, there’s a bioethics team that has participated in a national ethics bowl against schools like Florida State University and Clemson University,” Rodriguez said. “In the last three years, the team has only lost one match.”

Two Doral Academy seniors, Juan Infante and Miranda Murrillo, praised the dual enrollment program. “Even though I can’t use Doral College’s credits, I believe the courses gave me a big advantage with college admissions officers,” said Infante, who has been accepted to Harvard University. “It put me ahead of the curve.”

DORAL COLLEGE NOT ACCREDITED

Doral College’s current enrollment is 793 students, all hailing from 11 charter schools in Miami-Dade that are managed by Academica. Last year, 18 graduating high school seniors obtained associate liberal arts degrees from Doral College, Rodriguez said.

The problem is that those associate degrees don’t mean much because Doral College is not an accredited institution of higher learning.

The college is currently seeking accreditation by the Southern Association of Colleges and Schools, Rodriguez said. He called auditor Montes de Oca’s concerns “a non-issue.”

Rodriguez also downplayed questions of conflict of interest. He said Academica’s owners exert no control over the boards of the 49 charter schools that rely on the management company.

But higher education and ethics experts called the relationship between the charter schools and Doral College highly unusual.

“I have not seen anything like this around the country,” said Adam Lowe, executive director for the National Alliance of Concurrent Enrollment Partnerships. “I’ve never seen a college created for the exclusive purpose of crafting courses for high school students.”

Lowe said the inability of students to transfer credits from Doral College is a problem. “You have to wonder if the students will receive a valuable collegiate education,” Lowe said.

Robert Jarvis, an ethics law professor at Nova Southeastern University, questioned why the charter schools would need Doral College when there are accredited universities and colleges in the tri-county area.

“It certainly raises eyebrows,” Jarvis said. “It’s not like the Doral area is hurting for institutions of higher learning.”

Francisco Alvarado can be reached at falvarado@browardbulldog.org

Lt. Gov. Lopez-Cantera’s relatives profited from his 2008 House campaign, probe found

By Francisco Alvarado, BrowardBulldog.org 

Carlos Lopez-Cantera is sworn in as lieutenant governor on Feb. 3 as family members and Gov. Rick Scott look on.

Carlos Lopez-Cantera is sworn in as lieutenant governor on Feb. 3 as family members and Gov. Rick Scott look on.

Lt. Governor Carlos Lopez-Cantera is a generous big brother.

On October 09, 2008, about a month before then-state Rep. Lopez-Cantera won re-election by nearly 20 percentage points, his sister and her husband, a Miami-Dade police lieutenant, got into the electioneering business, forming High Ridge Consultants.

Eleven days later, Lopez- Cantera’s campaign cut High Ridge a $7,500 check – the first of several payments totaling $37,500 for claimed re-election campaign work done in 2008 and 2010.

Lopez Cantera’s all-in-the-family arrangement became the focus of a public corruption probe four years ago by the Miami-Dade State Attorney’s Office into the alleged theft of campaign funds.

BrowardBulldog.org obtained a close out memo that explains how investigators determined that Lopez-Cantera’s sister, Monica Cantera-Serralta and husband Gadyaces Serralta, made a profit of nearly $10,000 during the 2008 campaign. Detectives did not examine payments made during the 2010 campaign.

Assistant state attorney Howard Rosen, who authored the March 14, 2011 close out memo, concluded that no crime was committed.

“While it may not look good to campaign contributors or to the general public that a company wholly held by the candidate’s sister and brother-in-law made a profit on the campaign,” Rosen wrote. “Actual work was done by them, and there is nothing to preclude them from profiting from their work.”

POLICE LIEUTENANT REPRIMANDED

Miami-Dade police reprimanded Lt. Serralta, whose makes $120,000 a year as a robbery bureau supervisor, for failing to tell his bosses he was moonlighting as a political consultant, according to his internal affairs file.

The Serraltas did not return several messages left on their work voicemails, and did not respond to a list of questions sent to their work email addresses.

High Ridge doesn’t have an office. The couple lists their South Miami home as the company’s address.

Monica Cantera-Serralta is head of property management and brokerage services at Pan American Companies, her family’s real estate development firm. On state incorporation records, she is listed as High Ridge’s secretary.

Last winter, Gov. Rick Scott tapped Lopez-Cantera, by then Miami-Dade’s elected property appraiser, to become the state’s first Cuban-American lieutenant governor. Lopez-Cantera replaced Jennifer Carroll, who resigned the post in 2013 after state agents questioned her about her ties to a nonprofit veterans organization suspected of fraud.

Today, Lopez-Cantera is on the Republican ticket with Scott in next month’s gubernatorial election against Democrat Charlie Crist and his running mate, Annette Taddeo.

Lopez-Cantera did not answer a list of questions about High Ridge provided to Rick Scott reelection campaign spokesman Greg Blair. “These are baseless accusations made years ago by a political opponent,” Blair said. “The state attorney reviewed and concluded they had no merit.”

That opponent Blair referred to is Alex Morales, a former executive director of the Hialeah Housing Authority who nevertheless has never run against Lopez-Cantera.

Morales declined to comment to a reporter, but according to the close out memo he filed a May 18, 2010 complaint with the Miami-Dade Police public corruption bureau alleging that “Lopez-Cantera misused campaign funds from his 2008 re-election campaign by siphoning out several thousand dollars through a fictitious company which did not do any real work for the campaign and which was owned by his family members.”

Robert Jarvis, a Nova Southeastern University law and ethics professor, said it was odd that an experienced politician like Lopez-Cantera – who held a house seat from 2004 to 2012 and spent his last two years as House Majority Leader – would hire a company owned by family members with no prior campaign experience during the final stretch of an election.

At the time High Ridge was hired in 2008, Lopez-Cantera’s campaign already had three established Miami-Dade political consulting firms  – Edge Communications, G & R Strategies, and Marin & Sons – on the payroll.

POLITICAL FEATHERBEDDING?

“It looks like featherbedding,” said Jarvis, referring to the practice of hiring more employees than are needed to do the job. “It looks like, ‘I’m going to take care of my relatives.’”

The public corruption investigation focused on the fees High Ridge received from Lopez-Cantera’s 2008 campaign.

Investigators subpoenaed High Ridge’s bank records and found 46 canceled checks totaling $5,760 used to pay poll workers on Nov. 5, 2008, the day after the election. The Serraltas also provided receipts and invoices for $6,698 used to pay for boxed lunches provided to poll workers, polo shirts, rental cars, gasoline, a victory party, and purchases at BJs, Costco and Office Depot.

Gadyace Serralta told detectives that High Ridge made approximately $9,606 for “get out the vote” services. He also said there was no written contract between his firm and Lopez-Cantera’s campaign “due to the familial proximity.”

In all, Lopez-Cantera’s 2008 campaign paid High Ridge $22,500 in three payments. The first payment, for $7,500, was made on Oct. 20, 11 days after the company was established. High Ridge collected another $10,000 on Nov. 5, the day after the election, and $5,000 more on Dec. 9, according to Lopez-Cantera’s 2008 campaign finance report.

The campaign also made individual payments of $8,000 and $1,152 in December and January, respectively, to Monica Cantera-Serralta, who served as her brother’s treasurer, according to his 2008 campaign finance report. The payments were for her work as treasurer.

In the 2010 campaign, High Ridge received $15,000 from the campaign.

The only other candidate to hire High Ridge during the same time period was Lopez-Cantera’s House ally, Rep. Erik Fresen, R-Miami. Fresen’s campaign made three payments totaling $23,700 between Dec. 9, 2008 and Dec. 30, 2010.

The Serraltas appear to have given up the elections biz. In 2012, High Ridge did not work on Lopez-Cantera’s successful bid for Miami-Dade Property Appraiser.

Still, Nova’s Jarvis says the relationship between High Ridge and the two Lopez-Cantera campaigns is the type of insider dealing that erodes public trust in elected officials. “Is he looking out for taxpayers?” Jarvis said. “Or is he looking out for family and friends?”

Broward Health commissioner upgrades unpaid post to well-paid lobbyist for hospital district

By Dan Christensen, BrowardBulldog.org 

Clarence McKee, center, with  Gov. Rick Scott and former U.S. Rep. Allen West. Photo: McKee Communications

Clarence McKee, center, with Gov. Rick Scott and former U.S. Rep. Allen West. Photo: McKee Communications

When Clarence V. McKee quit his commissioner’s seat on the governing board of Broward Health in January, records show he urged his colleagues to keep an eye on consulting contracts doled out by the tax supported public health care system.

But less than a month later and without any public discussion by his former colleagues, McKee upgraded his unpaid position to a lobbying contract worth $65,000 courtesy of Broward Health Chief Executive Frank Nask, whose performance the board oversees.

McKee’s one-year contract with the North Broward Hospital District, Broward Health’s legal name, commenced March 1 – 29 days after he informed the board he was resigning.

Broward Health’s board never approved McKee’s 13-page contract to lobby in Tallahassee on the district’s behalf. They didn’t have to. Previously, Nask had been given the authority to sign contracts of up to $250,000.

McKee is the only former district board member to be employed as a lobbyist “during the time I have worked with Broward Health,” according to Charlotte Mather-Taylor-Taylor, a Broward Health executive in charge of government affairs and public relations. She has worked for Broward Health since June 1995, according to her resume on Linked In.

Mather-Taylor and McKee both said the idea of Broward Health employing McKee came up after his resignation and because of his experience and familiarity with the issues.

“I was approached by the administration, Charlotte and Frank, to be on the lobby team,” said McKee, whose reputation while on the board was something of a maverick. “I’m paranoid as hell and if I’d been approached before I left that board, or if somebody had suggested it, I wouldn’t have done it because given my voting pattern someone would have said I’d been bought off.”

FLORIDA’S ‘REVOLVING DOOR’ LAW

Florida’s narrowly drawn “revolving door” law prohibits legislators, elected officials and appointees from returning to lobby their government body for two years after leaving office. It does not speak to a situation like McKee’s.

“What this shows is that there are a lot of different issues that are not addressed in the statutes and rules, and in those situations everyone is supposed to use common sense and do what’s in the public interest and should avoid any appearance of impropriety. That isn’t what happened in this instance,” said Nova Southeastern University legal ethics professor Robert Jarvis.

Parkland-based McKee became the 11th member of the district’s formidable team of registered lobbyists. Senate records identify them as Ron Book, Jorge Chamizo, Charles Dudley, David and Candice Ericks, Jim Scott, Jason Unger, Brian Ballard and William Turbeville and Mather-Taylor. Nevertheless, Mather-Taylor said Ballard and Turbeville “were not on contract with us in 2013.”

McKee, a conservative Republican appointed to Broward Health’s board by Gov. Charlie Crist in 2010, also lobbies in Tallahassee for the Broward School Board. During the legislative session he operated under a one-year, $40,000-a-year contract. On Dec. 3, he signed a new, seven-month deal for $23,331.

What did McKee do for the money?

McKee told the School Board he focused on two issues in Tallahassee: securing legislation to obtain recurring funding for the board’s Broward Education Communications Network, or BECON, and passage of a bill that would let boards install cameras on school buses to help police identify drivers who fail to stop when a bus is displaying a stop signal. Neither became law.

In memos and email sent to Broward Health, and made public under the state’s Public Records Act, McKee described contacts with an aide to the governor and nearly a dozen South Florida state senators and representatives mostly during the session regarding issues involving Medicaid expansion and reimbursement, and the regulation of trauma centers.

“In all of the above, either directly in person or through staff, by phone or email, the Broward Health position was emphasized,” McKee said in a four-page report about his lobbying activities written days after the Legislature adjourned May 3.

LOBBYING ROLE NOT DISCLOSED

But McKee did other things, too.

He authored opinion articles for both the Sun-Sentinel and West Palm Beach-based Newsmax that pushed Broward Health’s agenda and buttered up allied legislators without disclosing to readers that he is a paid Broward Health lobbyist.

McKee reported back to his employers at Broward Health about the columns he’d written.

Here’s what McKee told Nask and Mather-Taylor about a March 27 article that ran in his Newsmax column, “The Silent Minority.” It was about a proposal by State Sen. Joe Negron, R-Stuart, touted as an alternative to Medicaid expansion.

“Here is my article on Negron and the bill. My editors gave it a great headline “Dignified Alternative” and hopefully it can get legs and give House GOP an ‘out’ and ‘cover’ to support it or similar…Was done in such a way as NOT to anger any GOP or Dems…need all of their votes,” McKee wrote the day after the article appeared in an email released to BrowardBulldog.org.

The Newsmax article identifies McKee as “president of McKee Communications, Inc., a government, political and media relations consulting firm in Florida” and said he who once worked for President Reagan. A separate on-site biography erroneously stated that he was then a commissioner on the North Broward Hospital District.

The Sun-Sentinel article was written on June 22, more than a month after the legislative session had ended. In it, McKee strokes Sen. Eleanor Sobel, D-Hollywood “for keeping the debate of expanding health-care alive and well” by staging a “Town Hall on Healthcare” public meeting.

Two months earlier, McKee had lobbied Sobel and others to support Negron’s alternative health care plan, which he reported to Nask and Mather-Taylor they did.  The bill passed the Senate, but not the House.

“It was particularly important that Eleanor Sobel, who had been vice chair of the Select Committee on Patient Protection and Affordable Care Act and was also a member of the Appropriations Committee, agreed to the Negron plan,” McKee wrote in his lobbying activity report.

The Sun-Sentinel article identifies McKee only as “president and CEO (of) McKee Communications Inc. and a former commissioner of Broward Health.

In an interview on Tuesday, McKee said he should have identified himself as a paid lobbyist in those articles.

“I’d never thought about it,” he said.

In addition to informing Nask and Mather-Taylor about his Sun-Sentinel piece, McKee also reported to them on the activities of John DeGroot, a former Sun-Sentinel reporter and columnist and outspoken critic of Broward Health and other local healthcare systems. DeGroot’s blog is http://john-degroot.com/

In a July 1 memo recounting Sobel’s standing room only Town Hall meeting, McKee reported that after passing out “literature on inequality of hospital care for minorities/ethnic groups” and criticizing Sobel, DeGroot and Sobel got into a “heated shouting match.”

“He, because of his tactics and demeanor, of course, was discounted by the audience,” McKee opined.

Fort Lauderdale police don’t enforce law requiring checks on buyers at gun shows

 

By William Hladky, BrowardBulldog.org gunshow

An apparent misreading of state law by the Fort Lauderdale Police has kept officers from enforcing a Broward County ordinance that requires criminal background checks on gun buyers at gun shows.

Two legal experts have told BrowardBulldog.org that the police department is wrong to believe that a state statute enacted last year invalidates the county background checks ordinance. Similarly, the Hillsborough County Attorney said in a memo this month that his county continues to have the “authority to require criminal background checks.”

The 1998 Broward county ordinance says criminal background checks must be done on gun buyers when sales occur “on property to which the public has a right of access.” A violation is a misdemeanor.

But Fort Lauderdale Police spokeswoman Det. DeAnna Greenlaw said the county ordinance no longer is in effect due to Florida Statute 790.33, enacted in 2011. That statute declares any city or county ordinance that regulates gun possession and sales “null and void.”

The Fort Lauderdale Police Department’s legal position is important. Broward’s two largest gun shows, sponsored by Ohio-based Suncoast Gun Shows and North Lauderdale’s Trader Ritch, are held in Fort Lauderdale.

Legal experts say the city’s legal interpretation is wrong. They say the law the city cites is trumped by an amendment to Florida’s Constitution, passed by voters in 1998, that gives counties the option to enact background check ordinances like Broward’s.

“Each county shall have the authority to require a criminal history records check…in connection with the sale of any firearm…when any part of the transaction is conducted on property to which the public has the right of access,” the amendment says.

‘POLICE HAVE IT WRONG’

Robert Jarvis, a Constitutional Law Professor at Nova Southeastern University, explained that the null-and-void statute has no impact on the county’s ordinance because it is rooted in the state constitution.

“A statute cannot nullify a Constitutional vision,” Jarvis said. “I think the police have it wrong.”

“You have a right to bear arms, but the state has a right to regulate,” Jarvis said. “When it comes to the Second Amendment, to firearms, a lot of misinterpretation and misinformation exists.”

Andrew McClurg, a firearms policy expert and law professor at the University of Memphis, agreed.

Jarvis “is certainly correct that a constitution trumps a statute. That’s a basic principle of constitutional law,” said McClurg, adding that the amendment appears to grant Florida’s counties the authority to enact background check ordinances.

The profile of Broward’s ordinance may rise with the U.S. Senate’s recent defeat of efforts to close loopholes and strengthen the federal background check law for gun buyers.

Mayor Jack Seiler

Mayor Jack Seiler

Broward State Attorney’s spokesman Ron Ishoy said in an email that his office was unable to find “any time where a law enforcement agency in Broward has brought us a case involving Broward County ordinance sec. 18-97.”

Nevertheless, Fort Lauderdale Mayor John P. “Jack” Seiler said in an interview that his city is enforcing the background check ordinance through another state statute, 790.065, regarding “the sale and delivery of firearms.”

However, that law only addresses the need for licensed gun dealers to conduct background checks. It does not address the issue of background checks for buyers who buy guns from non-licensed gun dealers, including those at gun shows.

The broader language of Broward’s ordinance covers non-licensed gun dealers. So, unless the buyer is exempt, it requires a buyer who purchases a gun from anybody at a public location to undergo a background check.

The Florida Constitution, state law and the county ordinance exempt from background checks gun buyers who are law enforcement officers or concealed weapons permit holders.

POLICE INTERPRET LAW 

Fort Lauderdale Police Chief Frank Adderley expressed a similar, apparently mistaken, opinion about the state law’s application.

“Everything in the county ordinance is included in the state statute…That is our interpretation,” said Adderley, citing legal counsel. Attorney Bradley H. Weissman is the department’s legal advisor.

Police Chief Frank Adderley

Police Chief Frank Adderley

“He’s interpreting it wrong,” said Nova Southeastern’s Jarvis. “The state statute does not touch on the issue which is addressed in the ordinance.”

Representatives of the Suncoast Gun Show, which holds shows at the War Memorial Auditorium, did not respond to several requests for comment about the ordinance and its background check practices. Its next gun shows at the auditorium are scheduled for May 4 and 5 and June 15 and 16.

Ritch Cecilio and Jim Hayden sponsor gun and knife shows in Broward County. They say they avoid violating the ordinance by requiring their gun buyers to have a Florida conceal weapons permit.

Cecilio requires a gun buyer at his shows to present a Florida driver’s license as well as a carrying permit because he is “trying to eliminate the possibility that anyone not supposed to have a gun gets a gun.” If a dealer or collector does not follow this rule, Cecilio says he will oust him from the show.

Hayden said a permit guarantees that person has been fingerprinted. A buyer who doesn’t have a permit must buy his gun through a licensed dealer who must order a background check and cannot deliver it until after a five-day waiting period, he said.

GUN SHOWS

Cecilio, who operates as Trader Ritch, sponsors a show the first Sunday of every month at the Universal Palms Hotel, 4900 Powerline Road, Fort Lauderdale. Hayden’s Oakland Park Gun and Knife Show happens about every other month at American Legion #222, at 4250 NE 5 Ave., Oakland Park. His next show is May 19.

Licensed gun dealers in Florida are required to do background checks through the Florida Department of Law Enforcement whenever they sell a gun. The checks are required wherever the sale is made.

In counties without a background check ordinance, civilians or collectors are not required to do background checks at gun shows or other public locations.

It is not known if promoters at the large Suncoast shows require gun buyers to have concealed weapons permits.

Mayor Seiler says that after the Sandy Hook Elementary School student massacre he contacted City Manager Lee Feldman, Adderley and the city attorney’s office to discuss enforcing gun laws in the city.

“I support stricter background checks…We have a very strong law enforcement presence at gun shows and we are working with multiple agencies at the state and federal level to enforce our gun laws,” the mayor said.

Gun sales between civilians at non-public locations are not subject to background checks. So it is often the case that gun purchases are discussed inside gun shows but are actually sold outside in the parking lot, said Hamilton Bobb, retired Assistant Agent in Charge of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in Miami.

“It is a big issue. It happens at every gun show,” Bobb said.

The Sun Sentinel reported that private dealers violated city law in during a gun show in January when they openly sold guns and ammunition outside Fort Lauderdale’s War Memorial Auditorium in Holiday Park. The city’s ordinance prohibits the sale of weapons in parks.

The Tampa Bay Times reported earlier this month that seven counties, representing 45 percent of Florida’s population, have background check ordinances similar to Broward’s. The newspaper reported the ordinances have been ineffective because of inconvenience, lack of public concern and misunderstanding of state law.

Butterworth skirts state lobbying laws to land $44 million-a-year contract in Broward

By Dan Christensen, BrowardBulldog.org 

Bob Butterworth

Ex-Department of Children and Families Secretary Bob Butterworth lobbied heavily this year to convince his former agency to award his nonprofit company – and its for profit partner – a $44 million-a-year state management contract.

Butterworth, however, is not registered in Tallahassee to lobby state officials.

The Broward Behavioral Health Coalition, Butterworth’s group, won the competition in March to become Broward’s new “managing entity for substance abuse and mental health services.”

Today, after months of delay caused by an unsuccessful bid protest, Butterworth is negotiating final contract terms with DCF. A signed deal is expected by Nov. 1.

As president of Broward Behavioral, Butterworth led the company’s campaign to secure the lucrative, multi-year contract.  Their bid was chosen over one made by Partnership for Community Health, a group of established Broward healthcare providers.

State procurement records obtained by BrowardBulldog.org show Butterworth assembled, signed and submitted a lengthy bid proposal on behalf of Broward Behavioral and its partner, Miami-based Concordia Behavioral Health.

Butterworth, a former Florida Attorney General and Broward County Sheriff, later participated in pre-award negotiations that included direct correspondence with DCF’s lead negotiator in which Butterworth advocated the merits of  “BBHC/Concordia team’s” cost savings proposal.

HOLE IN THE LAW

One state ethics expert said Democrat Butterworth – also a former judge and prosecutor – may have taken advantage of holes in the lobbyist law.

“It’s like Swiss Cheese,” said Philip Claypool, the retired executive director and general counsel for the Florida ethics commission.

Florida law broadly defines lobbying as “seeking, on behalf of another person, to influence an agency with respect to a decision of the agency in the area of policy or procurement.”

But its definition of lobbyist is narrower, turning on questions of a person’s employment, pay and job description.

“I think there is an argument on both sides,” said Claypool. “The question would have to be determined by knowing who paid whom, for what, and when, as well as what communications were made, when and under what circumstances.”

The Florida ethics commission can investigate alleged failures to register or to submit a required compensation report. It does not initiate probes, but responds to sworn complaints.

Violators may be reprimanded, censured or prohibited from lobbying for up to two years. They can also be fined up to $5,000.

Butterworth declined several requests to discuss his push to obtain the DCF contract and explain why he is not registered to lobby executive branch agencies.

SELF-DECLARED LOBBYIST

Butterworth, who also serves as Broward Behavioral’s chairman, told Sun-Sentinelcolumnist Michael Mayo in June that Concordia – owned by Miami businessman Carlos Saladrigas – was paying him as both a lawyer and a lobbyist.

Carlos Saladrigas

That potentially conflicting relationship is not disclosed in Broward Behavioral’s proposal submitted to DCF, an agency that he ran from January 2007 to August 2008.

Butterworth’s financial arrangement with Broward Behavioral also is not discussed in the proposal documents.  Company bylaws allow officers to be paid “reasonable compensation for their services.”

Nova Southeastern University law and legal ethics professor Robert Jarvis said Butterworth should have registered.

“We say we take seriously government in the sunshine. So having to register as a lobbyist is just part and parcel of that effort to make government as transparent as possible,” Jarvis said.

Carla Miller, a former federal prosecutor who now heads Jacksonville’s ethics office, said Florida’s lax lobbying requirements have allowed many to skate through without registering, including presidents of companies.

“There is an appearance that we are doing something to protect citizens when we aren’t, and that’s the bottom line,” said Miller, who founded CityEthics.org a dozen years ago to promote ethics in government. “Bob Butterworth has probably figured out the lobbying law. “

PRIVATIZING GOVERNMENT

The idea of using managing entities to privatize oversight of state substance abuse and mental health services was a DCF initiative under Butterworth, according to department documents.

The idea: to save millions of dollars in expenses that can be redirected to improving care in a state where such government-funded services have long lagged the rest of the nation.

In 2007, DCF held a public meeting to hear comment on “the role and functions of a managing entity” in advance of a planned procurement in southeast Florida, records say.

Last fall, DCF Secretary David Wilkins announced an “intent to negotiate” for the job of managing entity for Broward.

DCF Secretary David Wilkins

He said he expected “a significant number” of qualified nonprofits to submit sealed bids.

But there were only two bidders: Broward Behavioral and the Partnership for Community Health.

The Partnership was ranked higher by six of the state’s eight evaluators. It also had the highest score.

Broward Behavioral was deemed to be “nonresponsive” because it did not include required paperwork to demonstrate its financial stability.

Nevertheless, as DCF’s general counsel Marion Drew Parker has put it, a “wrinkle” in the competitive process allowed DCF to scrap the idea of sealed bids.

Negotiations started over, now with just a single DCF employee – instead of a committee – charged with recommending a winner, and Broward Behavioral came out on top.

The deal was delayed when the Partnership filed a 22-page bid protest alleging, among other things, that the contract award was illegally steered to Butterworth’s group.

DCF quickly denied the protest. The Partnership sued, but an appeals panel dismissed the case in August because it had neglected to post a required protest bond

The underlying corruption allegations were not addressed. A DCF spokesman has denied any impropriety.

Broward Bulldog reported last week that DCF awarded the contract to Butterworth’s group without required rules in place to promote public scrutiny.

 

 

 

 

 

 

 

 

Broward Inspector General hits first legal hurdle; Hallandale CRA says hands off

By William Gjebre, BrowardBulldog.org 

Hallandale Beach’s Community Redevelopment Agency, run by the city’s five elected commissioners, has sent a message to Broward’s new Inspector General’s Office – you can’t touch us.

Numerous questions have been raised about the business dealings of the CRA, in which city commissioners also serve as directors of the agency.

But now the agency has called into question the IG’s authority to delve into its management practices, declining to have commissioners answer county investigators’ questions about their actions as CRA directors. The move is the first significant challenge to the authority of the year-old criminal justice agency whose job is to investigate possible fraud, corruption and gross mismanagement.

“It is our opinion that the authority of the Inspector General does not generally extend to a community redevelopment agency (CRA) and its board members,” CRA attorney Steven Zelkowitz wrote in a June 18 letter to Inspector General Counsel Jennifer Merino.

“As we both know, the individual Hallandale Beach CRA board members and the city commissioners are each one in the same person. However, in these separate capacities they wear separate hats and are guided by separate legal requirements.”

The Hallandale CRA’s bottom line: the IG’s auditors and agents can talk to the five commissioners about their actions as commissioners, but not as CRA board members.

INVESTIGATIVE AUTHORITY QUESTIONED

Zelkowitz’s legal opinion is rooted in the CRA’s status as a special district, a distinct legal entity under Florida law. According to him, board members are public officers regulated by Florida’s Code of Ethics for Public Officials, not the recently updated, and more stringent, Broward County Code that covers all officials and employees of the county and its municipalities.

The CRA uses property tax dollars collected within the district to promote businesses and redevelopment.

What may happen next is unclear, but the Inspector General’s Office is not expected to back down from continuing its probe in the face of a challenge that could impact its authority over the many other special districts in the county. They include large the North and South Broward Hospital Districts and smaller ones such as the Performing Arts Center Authority or the Hillsboro Inlet District.

Inspector General John Scott declined comment.

Robert Jarvis, a professor of constitutional law at Nova Southeastern University, said this is the first big test of the IG’s authority, and that Zelkowitz may have a point. He cited a recent decision by the Fourth District Court of Appeal in West Palm Beach that limited the jurisdiction of the Attorney General to investigate foreclosure mills.

“I think the CRA may be right,” said Jarvis. “I think this has to be decided by a court.”

Last week’s letter is the second push back from Hallandale Beach.

Several weeks ago, City Attorney V. Lynn Whitfield informed the IG that the City Manager’s Office would not voluntarily schedule meetings between city commissioners and county agents investigating city management practices, including those at the CRA.

In last week’s letter to IG counsel Merino, Zelkowitz allowed that the IG has the authority, under county code, with respect to the same city commissioners in their city functions – but not those concerning the CRA.

He also stated that the IG may have the authority to review any goods and services that CRA provides to the city. However, Zelkowitz, stated, “In such case, the Inspector General would have authority, but solely with respect to the provisions of such goods and services.”

Zelkowitz declined comment.

City Attorney Whitfield also declined comment. In her June 13 letter to the IG, she said her office wants to know whether the probe is targeted at commissioners as a whole or to actions of individual commissioners to determine what type of legal representation they may require.

The IG is a watchdog agency established in the wake of recent county scandals. It can investigate, but not arrest. It is a member of Broward’s Public Corruption Task Force – a specialized group of federal, state and local investigators and prosecutors – that in April was designated as a “criminal justice agency” by the Federal Bureau of Investigation.

CITY WANTS MORE INFO

Renee Crichton, Hallandale’s newly appointed city manager, said when the office received a call from the IG it contacted the city attorney and the CRA attorney to discuss the IG’s request to interview commissioners. She declined to comment on whether any member of the city commission was involved in the discussion at some point.

“The CRA and the city commission has not taken any position” on the dispute, Crichton said. “On our part, we need more information as to why the Inspector General wants to interview commissioners. There needs to be some structure; what do they want to discuss.”

“We are not saying we will not cooperate,” Crichton said, adding the city has done so by providing many of the documents requested by the IG.

A call to Broward County Attorney Joni Armstrong Coffey resulted in a callback from Assistant County Attorney Anthony Myers. Asked about the IG’s authority in the matter under county law, Myers said he does not have “sufficient knowledge” to comment. He added it is possible the matter could end up in a court of law.

At least one city commissioner disagrees with the CRA’s position. “The IG does have jurisdiction,” said London, who is running for mayor against incumbent Joy Cooper. A part of the state law, he said, speaks to the mingling of city and state funds and that would give the investigators authority.

If called by the IG, London said, “I’ll go; I look forward to it.”

Commission members Dorothy Ross and Anthony Sanders both said they would be guided by the city legal counsel on whether to be interviewed.

As Broward Bulldog reported last week, the IG has requested city documents about several community-based groups associated with Sanders or his wife Jessica. The complaints made to the IG, Sanders said, are “coming from the negativity of people. I’m not saying who specifically. It is what it is; it’s a part of the politics.”

When and if he speaks to investigators, Sanders said, “I’ll be glad to talk to them in any capacity, as a city commissioner or a CRA director.”

Mayor Joy Cooper and Commissioner Alexander Lewy could not be reached for comment.

In his letter, Zelkowitz asked the IG to restrict his questioning of city commissioners “to their actions as city commissioners and not as HBCRA Board Members. In this regard, we defer to the City Attorney as to the direction of your investigation with respect to the City and Commissioners.

“Notwithstanding the foregoing, the HBCRA is ready, willing and able to comply with all public records requests of the Inspector General as the records of the HBCRA constitute public records under Chapter 119, Florida Statutes.”

William Gjebre can be reached at wgjebre@browardbulldog.org

 

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