Sparks fly at hospital hearing

Broward Health lawyers attack criminal case, ask what leaders did wrong

Attorneys for leaders of Broward Health launched a forceful attack on the criminal case against them, saying prosecutors still haven’t said exactly what their clients did wrong.

At a hearing Thursday in Fort Lauderdale, lawyers for five current or former leaders of the public hospital system said prosecutors haven’t provided any specifics on what actions the defendants took that violated Florida’s open-meetings law.

Last December, a grand jury indicted Broward Health General Counsel Lynn Barrett, Chief Executive Officer Beverly Capasso, board Chairman Rocky Rodriguez and board members Linda Robi-

son and Christopher Ure on misdemeanor charges of violating the open-meeting law, known as the Sunshine Law.

The indictments concerned a series of one-onone meetings at a hotel and a restaurant between board members, Barrett and outside lawyers that culminated in a public meeting at which the board voted to fire interim CEO Pauline Grant on kickbacks allegations. Grant, never criminally charged, claimed innocence and filed suit.

Roberto Martinez, Barrett’s attorney, said the prosecution hasn’t provided any evidence that Barrett or anyone else passed information or views from board member to board member to allow them to communicate in violation of the Sunshine Law.

“The state needs to let my client know exactly what it is that she said,” he said. “Just briefing a board member is not a crime.”

“What is it that was said?” he asked. “What is it that was allegedly passed on from one board member to another? That’s the essence of a Sunshine Law violation.”

The hearing concerned a motion from the defendants that the prosecution provide specifics on what precisely their clients did that violated the Sunshine Law, which requires meetings of public boards to be conducted in public, with advance notice of the matters to be discussed and minutes taken.

Assistant state attorney Tim Donnelly responded that violations of the Sunshine Law could take place without an indirect exchange of information between board members. In this case, he said, board members and their general counsel created a “de facto board meeting” when individual board members participated in “secret off-campus” meetings with Barrett and outside lawyers at a hotel and a restaurant.

At these meetings, they received a report from a lawyer retained by Barrett to investigate the allegations against Grant. And they heard from a different outside lawyer recommending that the allegations be reported to the federal government. Finally, the chairman of the Broward Health board changed the agenda for the public meeting — but not in a way to really tell the public that the board was going to fire and replace the CEO.

They could have done much of this in public, Donnelly said, receiving the report as a board, discussing what to do, hearing from outside lawyers. Instead, he said, they met surreptitiously, out of the public view.

“When they go to the hotel and they meet to talk about this reportable event when they go to the restaurant and they go there to talk about it, these are all factors that go into whether this is a de facto meeting or not,” he said.

Donnelly said he would not seek jail time. None of the defendants have records. But he said the secret meetings clearly violated the law.

“Meetings have to be public, there have to be minutes taken, and there has to be notice,” he said. “You do a de facto meeting when you’re using staff as a conduit.”

But for board members who simply showed up to meet with the general counsel and the other lawyers when called, this seemed like a severe interpretation of an innocent attempt to fulfill their obligations in a volunteer position.

“I sat down with my client when I got the indictment,” said Bruce Lehr, attorney for board member Christopher Ure. “And he said, ‘Well, what do they say I did wrong?’ And I said ‘I honestly don’t know.’ So I moved for a statement of particulars, got the statement of particulars, read it three times, scratched my head and said, ‘I still don’t know what you did wrong.’”

“Just having a meeting with lawyers, not knowing if anyone else has met before, not knowing if anyone has discussed anything before, just having a meeting with your staff and your lawyers cannot be a crime,” he said. “To this day, all these months later, Mr. Ure says to me, “What did I do wrong?” And based upon the first statement of particulars, I have no idea.”

Broward Health, which levies property taxes and operates under the supervision of a board appointed by Gov. Rick Scott, runs five hospitals and various treatment centers that serve the northern two-thirds of the county.

County Judge Christopher Pole denied the motion to require prosecutors to provide more specifics, noting that the defendants arguments sounded more appropriate for a motion to dismiss the case. Defense lawyers said such a motion will be filed.

The judge set a tentative trial date for April 8.