By Thomas Francis, BrowardBulldog.org
The Broward State Attorney’s Office will not file criminal charges against Joseph Cobo, a powerful hospital commissioner accused of exploiting his public position for private gain. But prosecutors who investigated those allegations found reason to alert the state’s ethics enforcement board.
In a memo dated January 13, Assistant State Attorney David Schulson cited a lack of “independent evidence” corroborating a report from a local physician who said that Cobo used his power as a Broward Health commissioner in seeking to punish that doctor for refusing to retain Cobo’s medical consulting firm.
“The State Attorney did a thorough investigation of more than a year’s time and they found no significant criminal wrongdoing,” said Alberto Milian, Cobo’s attorney. “That’s good news.”
But it’s not all good news for Cobo.
After an investigation that spanned 19 months, prosecutors turned up enough evidence of potential misconduct to ask the Florida Commission on Ethics to review Cobo’s case. The ethics commission will determine whether Cobo committed violations of state law governing public officials. If it finds violations, ethics officials could issue civil fines and demand his removal from office.
The prosecutor’s referral, sent to the ethics commission in mid-January, is bolstered by sworn testimony of Dr. Dimitrious Lintzeris, the physician who alleged that in 2008 Cobo pressured him to employ Cobo’s firm, Florida Medical Management Consultants. In addition, the file included sworn statements from the Broward Health officials.
The original complaint came from the district’s former general counsel, Troy Kishbaugh, who in January 2009 made 13 separate allegations of what he believed to be ethical misconduct by Cobo. The district’s general counsel Marc Goldstone brought in former assistant U.S. Attorney Martin Goldberg to investigate the allegations.
Of those allegations, the most troubling one involved Cobo’s conduct toward Lintzeris. Lintzeris contacted Cobo’s consulting firm in early 2008 to see if Cobo could help Lintzeris’ new family physician practice get financial assistance from the hospital district. According to statements by Lintzeris’ lawyer, the physician didn’t realize at the time that Cobo was also a Broward Health commissioner.
But during their initial meeting, Cobo allegedly informed Lintzeris of his influential public position. Cobo then phoned Calvin Glidewell, chief executive officer at district hospital Imperial Point Medical Center, to set up a meeting. Following Glidewell’s meeting with Lintzeris, the CEO phoned Kishbaugh, who was then the district’s acting general counsel. Kishbaugh said that the district would not be able to give financial assistance to Lintzeris.
According to the findings of independent investigator Goldberg, as well as the Broward State Attorney’s Office, Cobo then interceded on Lintzeris’ behalf, calling Kishbaugh. As a commissioner, Cobo would be voting that fall on whether to make Kishbaugh the district’s permanent general counsel.
Following that conversation with Cobo, Kishbaugh reversed course and gave his approval for the district’s awarding Lintzeris an income guarantee agreement.
According to the report, Cobo then circled back to Lintzeris to claim credit for the deal and to set up a private consulting agreement with Lintzeris. Based on advice from his attorney, Lintzeris decided against hiring Cobo as a consultant.
“When Lintzeris rebuffed Cobo’s suggesting that Lintzeris now retain (Florida Medical Management Consultants), Cobo became angry with Lintzeris, raised his voice and said, ‘That’s not the way things are done’ and called Lintzeris ‘unprofessional,’” said the report by the investigator Goldberg — an account that was confirmed by the State Attorney’s investigation.
Cobo then allegedly called Imperial Point CEO Glidewell, who had authority over Lintzeris’ new deal with the district.
According to the State Attorney’s investigation: “Commissioner Cobo, who had always been very positive in his communications (to Glidewell) about Dr. Lintzeris, now told Mr. Glidewell that ‘he had gotten some information about Dr. Lintzeris that led him to believe that Dr. Lintzeris was not always upfront, that he was potentially disruptive and we should take a look at the income guarantee agreement.’”
But the State Attorney pointed out that Cobo never specifically demanded that Glidewell nix the deal with Lintzeris. Nor did Cobo bring up that matter at a meeting of the district’s board. And ultimately, Glidewell followed through with the income guarantee agreement that Lintzeris sought.
Better suited for civil action
In the close-out memo, Broward prosecutors expressed a lack of confidence in bringing a case that rested, ultimately, on hearsay — the reports from those who were privy to conversations between Cobo, Lintzeris and district officials. That’s because in a criminal court, a conviction depends on a jury finding guilt “beyond reasonable doubt.”
The standard is only a shade lower for the Florida Commission on Ethics, which only penalizes public officials if it finds “clear and convincing evidence” of violations of ethics law. During last year’s legislative session, the ethics commission lobbied to have that burden of proof lowered to “preponderance of the evidence,” which is the standard in civil courts. But the bill died in committee. It has been redrafted for this year’s session.
The ethics commission is composed of a nine-member panel, five of whom are appointed by the governor. Since taking office last month Gov. Rick Scott has yet to appoint a member to the commission, meaning that the majority were appointed by Charlie Crist, just like Cobo was.
Cobo’s attorney, Milian, declined to discuss the Lintzeris case. “I don’t think it’s appropriate for us to be discussing allegations in a piecemeal fashion,” he said.
A round-about path
The report on Cobo’s alleged ethical improprieties took a circuitous path to the Florida Commission on Ethics. In early 2009, then-chairman Mike Fernandez complained that investigator Goldberg was being overly aggressive. Fernandez ordered Goldberg to publish his findings before the investigator had finished interviewing sources and researching the allegations against Cobo.
Still, Goldberg’s report found that five of the 13 allegations of misconduct against Cobo were “credible.”
It was up to the board to recommend a response to what they learned from Goldberg’s report, and they would depend chiefly upon the advice of the district’s general counsel, which was then Goldstone. According to documents made public last year, Goldstone was prepared to recommend that the report on Cobo be sent to the ethics commission.
But Goldstone and his associate general counsel, Joe Truhe, were fired less than two weeks before they could give that recommendation.
Fernandez told the investigator, Goldberg, not to attend the May 27, 2009, meeting where the board was to act upon the report Goldberg made on Cobo. As a result, Goldberg was not there to defend himself during the public comment period, when a slew of powerful Cobo friends accused Goldberg’s report of being tainted by political motives.
The interim general counsel, Sam Goren, recommended the Cobo report be sent to the governor, rather than to the ethics commission or to the Broward State Attorney’s Office.
Prosecutors, however, had been reading coverage of the Cobo investigation on Juice, a New Times Broward-Palm Beach blog that compelled them to open their own investigation.
Ironically, it would have been better for Cobo if the ethics commission had received Goldberg’s report in May 2009. That 19-month delay means that the ethics commission will see that another investigator — the Broward State Attorney’s Office — agreed with Goldberg’s conclusion that Cobo may have violated ethics law.
The ethics commission does not comment on pending complaints.