Audit: Orange clerk played role in Fierle scandal
Office failed to adequately monitor guardianship cases
Orange County Clerk of Courts Tiffany Moore Russell’s office failed to alert judges of financial discrepancies in guardianship cases and let some go unmonitored for years, including one in which a ward’s death went unnoticed for nearly three years, according to an audit released Monday.
The audit from the office of Orange County Comptroller Phil Diamond started before a statewide scandal erupted in 2019 involving Rebecca Fierle, a prolific Orlando-based court-appointed guardian for hundreds of incapacitated people who resigned and was later arrested on charges of abuse and neglect in the death of a ward.
In an 86-page report, Diamond’s office outlined numerous issues with how Moore Russell’s clerks oversaw guardianship cases from January 2015 through July 2017. More than 3,300 guardianship cases were initiated from 2007 to 2017, but neither the clerk nor the court knew how many of those cases were active, the report states.
Auditors found 29 cases that had gone unmonitored for up to nine years, with guardians still in charge but not filing required paperwork regarding their
wards’ health, needs and financial accounts.
The audit shows the system governing guardians is “totally unreliable” and “highly vulnerable to easy manipulation and abuses by the people who profit from it,” said Sam Sugar, founder of the South Florida-based organization Americans Against Abusive Probate Guardianship.
“There is no monitoring,” he said. “It’s a free-for-all. These guardians can get away with anything because they know nobody’s watching. They know nobody will detect it until years later.”
Diamond’s office included in its findings several suggested changes to improve clerks’ administration of the guardianship program, but Moore Russell’s office, in a response, pushed back on almost all of them.
Moore Russell wrote in a Jan. 20 letter to Diamond, after more than a year of back-and-forth communication over a draft of the audit, that some of his recommendations concerned elements of guardianship that were duties of the court, attorneys or the guardians themselves, rather than the clerk.
Moore Russell said Monday her office was complying with the law, but the audit recommended actions that would exceed her authority and some of the findings were “not accurate.”
“While some findings and recommendations included in the document are well-intentioned, we strongly disagree with a number of them, primarily because they are outside the scope of the audit and reflect a misunderstanding of our office’s responsibilities under the law,” Moore Russell said in a statement.
‘We don’t do bed checks’
Moore Russell, in an interview Monday, argued Diamond’s auditors overstated the clerk’s role in guardianship oversight, which she said is limited to alerting the court if paperwork is missing. “The clerk’s office is not an inspector general,” she said. “We don’t do bed checks.”
Diamond disagreed, saying the law requires the clerk to conduct audits on certain filings. And even on her own terms, Moore Russell’s staff fell short, he said.
“When the clerk says that they’re only required to alert when something is not filed ... our report details many instances where that wasn’t even done,” he said.
Court-appointed guardians assume full control over the lives of their wards — they can decide where a ward lives, sell their home or property, authorize or reject a medical treatment, manage their money and even restrict their contact with the outside world.
Under Florida law, the clerk’s job is to maintain a guardian’s required documentation, review and audit financial filings and annual plans for deficiencies, and notify judges of late filings and other non-compliance in guardianship cases.
The audit found that errors in the clerk’s case management system made it hard for clerks and judges to get accurate information about late or missing filings, which could have triggered reviews.
And the four deputy clerks in charge of monitoring guardianship cases during the audit also dealt with “distractions” on the job because they were required to answer the phone and questions at the front counter, perform weddings and offer translation help.
The clerk’s office did not verify if professional guardians had valid registrations with the Office of Public and Professional Guardians when the guardianship process was initiated, Diamond’s office found. And the clerk did not have procedures in place to reassign cases away from suspended guardians, the report said.
Former guardian Lauren Motcheck was suspended by OPPG in July 2016 for failing to renew her registration, and the state agency alerted Moore Russell’s office in October 2016, the audit said. But Motcheck remained a guardian to five wards for months after that, because the clerk’s office did not notify the court that replacement guardians were needed.
During their review, auditors notified the clerk’s office that one of Motcheck’s cases still needed a successor guardian in August 2017. One was finally appointed — 16 months after the guardian’s suspension.
“During this time, no one was looking out for the personal or financial interests of the ward,” the report said.
One of Motcheck’s wards died before she was suspended in 2015, but neither the guardian nor her attorney had told the judge in charge of the case or filed necessary paperwork about the ward’s well-being.
“The Clerk and the Court were unaware that the ward had died until we provided a copy of the death certificate ... 33 months after the ward died,” auditors wrote.
Motcheck did not respond to a request for comment.
Auditors: Conflicts an issue
Diamond’s office reviewed the clerk’s files on 24 professional guardians and found 19 had not given the clerk required documentation for themselves or their employees, including credit history, criminal background checks and proof of a fiduciary bond.
A review of 31 cases found attorneys and guardians paid from wards’ estates without approval, including $5,413 to one attorney who was not listed on the case, according to the audit. A sample of 14 guardianship cases found more than $1.25 million in expenses without supporting receipts.
The audit also determined that conflicts of interest are a problem that Moore Russell should address.
Lake Mary guardian Theresa Barton transferred the assets of three incapacitated clients to a pooled trust and told a judge that annual accountings didn’t need to be filed with the court because the funds were administered by a trust she didn’t control, Diamond’s office said.
But Barton’s husband was executive director over the nonprofit corporation that managed the trust, and tax forms listed Barton’s guardianship company as an “interested person” that had transactions with the nonprofit, according to auditors.
On behalf of one client, Barton entered into an agreement that said “all remaining funds of the ward held by the trust at the ward’s death will be retained by the trust,” the report said.
Wendy Kittleson, deputy director of the county audit division, said the comptroller’s office did not confirm any misconduct by Barton but the guardian “should have reported the conflict to the court.”
Barton did not respond to a request for comment.
Diamond’s office previously discovered Fierle had improperly billed AdventHealth nearly $4 million for services she provided to their vulnerable patients as a guardian, often double-billing her incapacitated clients for the same services. Diamond said the clerk’s office told his auditors about other conflicts of interest in Fierle’s cases before the scandal but did not bring them up to a judge, which could have prevented some of her actions.
Moore Russell said her office did not know which of her employees told auditors about Fierle’s conflicts of interest and added that Diamond’s office did not provide them with that information.
Diamond said he provided those names to Russell in a Jan. 11 email, a copy of which he provided to the Sentinel on Monday.
In her letter, Moore Russell said her office has made changes to guardianship oversight since the audit began, including completing a guardianship manual, creating a data dashboard and reaching out to a certified public accountant firm to help with complex cases.
“I don’t agree with how this audit was handled,” said Moore Russell, who said auditors weren’t transparent with her office or willing to learn its practices. “... All of those things made it difficult to truly work with them, which led to the deterioration of the relationship that we are in today.”
Diamond said his office provided the clerk’s office a list of 200 cases that had issues, which Moore Russell said her staff could not finish reviewing because of time and resources.
“I don’t know if you can be much more transparent than that,” Diamond said.
Rachel Lynne Cushman is used to getting calls from Chinook Nation members worried about losing housing or having their power shut off. Since COVID-19 hit, they come in daily.
Cushman is secretary-treasurer for the group of tribes whose rural, ancestral lands are based in one of Washington state’s poorest counties. While they mostly have been spared from the health effects of the coronavirus, the pandemic has taken a significant economic toll.
“We’re doing the best we can,” Cushman said. “But the reality is we don’t have the resources to help.”
Unlike federally recognized tribes, the Chinook Nation doesn’t have a political relationship with the United States, which would make it eligible for federal coronavirus relief funding for state, local and tribal governments. Hundreds of tribes lack the designation, which they say leaves them struggling to help their members and less equipped to combat a pandemic that’s disproportionately affected Native Americans and other people of color.
The 574 federally recognized tribes shared $8 billion from a coronavirus relief package approved last March. They have used the money to provide meals, personal protective equipment, cleaning supplies, COVID19 testing, business support, housing relief and more. Another bill that passed in December gives those tribes another year to spend the money and includes funding for vaccines, testing and housing assistance.
The Chinook Nation — made up of the Lower Chinook, Clatsop, Willapa, Wahkiakum and Kathlamet tribes — received some federal funding through a local nonprofit for small tribes to distribute food to elders and help with electricity bills, tribal council chairman Tony A. (Naschio) Johnson said. But even paired with grants, he said it’s a drop in the bucket.
“It’s completely unfair for our neighbors to get millions of dollars, and for us to get some trickle-down, if anything,” Johnson said. “That’s not to say that other tribes shouldn’t be getting funding; we just need funding too.”
The path to federal recognition is long, complicated and expensive, requiring deep anthropological and genealogical research and extensive documentation proving that the tribe is distinct from others and has continuously operated since the 1900s. The process can cost millions of dollars.
Tribes have received the designation through treaties, acts of Congress or by applying to the Interior Department. With it, tribal land is protected from being sold, their governments are recognized as sovereign, and they share in federal funding for things like public safety, education and health.
The Chinook Nation’s quest for federal recognition started with hiring lawyers to fight for land rights in 1899. The tribe was recognized in 2001, but the status was revoked 18 months later after the U.S. Bureau of Indian Affairs ruled that it failed to prove it had consistently existed as a tribe through history.
The revocation was traumatic, said Johnson, who cut his hair in a traditional sign of mourning. He said he sometimes looks back at a letter he wrote to his children about the bright future ahead and wants to scream.
They’re still battling for the status and got a boost from a U.S. judge who ruled about a year ago that a ban on the tribe reapplying for federal recognition was unjustified.
Meanwhile, the Fernandeno Tataviam Band of Mission Indians, a tribe in Los Angeles County without a land base, has raised $2.6 million to build a case. It’s among six tribes based in California, Florida, Michigan and New Mexico whose petitions are being considered by the U.S. Bureau of Indian Affairs.
The Los Angeles-area tribe’s 900 members are facing job losses and food insecurity, tribal President Rudy Ortega said.
The problems are not unlike what federally recognized tribes and others are facing in the pandemic, he said, but his tribe has additional roadblocks to financial help. Grant funding has helped, but applying for the money has become more arduous after 10 tribal government employees were laid off, Ortega said.
“We do the best with what we have, but we wish we had more because we can’t fulfill everyone’s needs on our own,” he said.
The tribe is recognized by California, but that doesn’t guarantee government funding. While it can open access to state funding, state recognition is mostly seen as a stepping stone to federal recognition.
In the meantime, the tribe’s leaders are asking members for help delivering food and donating money for emergency rental assistance, COVID-19 testing and protective equipment. Other than that, much of the tribe’s funding comes from grants and an online store.
Likewise, efforts within the Chinook Nation to combat the pandemic haven’t gone far enough, tribal leaders say. While they have taken strict COVID-19 precautions, there was little to prepare the tribe for the economic effects. Tribal leaders expanded a distribution system for those most in need.
“With federal recognition, that’s how we’re going to change the future of our community,” Johnson said.