Item K4* TIME CERTAIN 2:30 P.M.
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 2/17/10 - KL Division: County Attorney
Bulk Item: Yes No X Staff Contact Person: Suzanne Hutton, #3473
AGENDA ITEM WORDING:
An Attorney -Client Closed Session of the Board of County Commissioners in the matter of Key West
HM4, LLC dlb/a Lower Keys Medical Center and as DePoo Hospital v. Monroe County, Board of
County Commissioners, Case No. CAK 09-2158.
ITEM BACKGROUND:
Legal staff desires direction from the Board. Per F. S. 286.011(8), the subject matter of the meeting
shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.
Present at the meeting will be the Commissioners, County Administrator Roman Gastesi, County
Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger and a certified Court
Reporter.
PREVIOUS RELEVANT BOCC ACTION:
1/20/10 BOCC approved Closed Session for 2/17/10 @ 2:30 p.m. in Key Largo
CONTRACT/AGREEMENT CHANGES -
N/A
STAFF RECOMMENDATIONS:
N/A
TOTAL COST: Est. 200 INDIRECT COST: BUDGETED: Yes X No
COST TO COUNTY: Est. $200 SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasmg Risk Management
DOCUMENTATION: Included
DISPOSITION:
Revised 2/05
Not Required X
AGENDA ITEM #
County of Monroe
The Florida Keys
Robert B. Shillinger, County Attorney"
Pedro J. Mercado, Assistant County Attorney **
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney**
Steven T. Williams, Assistant County Attorney**
Peter H. Morris, Assistant County Attorney
Patricia Eables, Assistant County Attorney
Chris Ambrosio, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
May 25, 2017
Kevin Madok, Clerk of the Circuit Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
p "a BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tem David Rice, District 4
Danny L. Kolhage, District 1
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
Office of the County Attorney
1111 121h Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
In Re: Key West HMA, LLC v. Monroe County, Case No.: CA-K-09-2158
Dear Mr. Madok:
Please find enclosed herewith the transcript of the February 17, 2010 and January 19, 2011
closed attorney/client session of the Monroe County Board of County Commissioners
regarding the above -referenced matter. Under F.S. 286.011(8), the transcript may be part of
the public record because the litigation has concluded.
Thank you for your assistance with this matter. Please contact me should you have any
questions.
Sincerely,
jr �
Robert B. Shillinger
Monroe County Attorney
Enclosure
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MEETING OF THE
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ATTORNEY -CLIENT CLOSED EXECUTIVE SESSION
RE: KEY WEST HMA, LLC d/b/a LOWER KEYS MEDICAL CENTER AND AS
DePOO HOSPITAL VS.
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, CA K 09-2158
HELD AT THE
MURRAY E. NELSON GOVERNMENT CENTER
102050 OVERSEAS HIGHWAY
KEY LARGO, FLORIDA 33037
WEDNESDAY, FEBRUARY 17, 2010
3:17 P.M. - 3:33 P.M.
Commissioners Present: ORIGINAL
COMMISSIONER HEATHER CARRUTHERS
MAYOR PRO TEM SYLVIA MURPHY
MAYOR GEORGE NUGENT
COMMISSIONER MARIO DIGENNARO
COMMISSIONER KIM WIGINGTON
COUNTY ATTORNEY SUZANNE HUTTON, ESQ.
CHIEF ASSISTANT COUNTY ATTORNEY BOB SHILLINGER, ESQ.
ASSISTANT COUNTY ATTORNEY SUSAN GRIMSLEY, ESQ.
COUNTY ADMINISTRATOR ROMAN GASTESI
ALL KEYS REPORTING
Olde Towne Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, 2nd Floor
Marathon, Florida Key West, Florida
305-289-1201 305-294-2601
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MAYOR MURPHY PRO TEM: Now, we'll reopen the closed
session to do a board.
MS. HUTTON: All right. Which is the matter of Key
West HMA, LLC, doing business as Lower Keys Medical
Center and as DePoo Hospital versus Monroe County, Board
of County Commissioners, Case No. CA K 09-2158. And it's
already been announced in the open session that we were
going to do two closed sessions back to back. So the
information about who would remain in the room, the
county attorneys, the county commissioners, the
administrator, and the court reporter, have already been
read into the record.
This meeting is being held upon my request. I have
announced at a prior public meeting held on January 20th,
2010, that I needed advice concerning the pending matter
of Key West HMA, LLC, doing business as Lower Keys
Medical Center and as DePoo Hospital versus Monroe County
Board of County Commissioners, Case Number CA K 09-215A.
At that meeting the board approved holding today's closed
session. Public notice was given on January 20th, 2010
BOCC meeting and the publication of the agenda for the
February 17th, 2010 BOCC regular meeting.
For the record, and the benefit of the court
reporter, each of us will state our name and position
starting with the commission. Commissioner DiGennaro.
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Commissioner DiGennaro, district four.
MAYOR NUGENT: Identify yourself.
COMMISSIONER DIGENNARO: Oh, district four.
Commissioner Mario DiGennaro, district four.
COMMISSIONER CARRUTHERS: Commissioner Heather
Carruthers, district three.
MAYOR MURPHY PRO TEM: Sylvia Murphy, district five.
MAYOR NUGENT: George Nugent, county commissioner,
district two.
COMMISSIONER WINGINGTON: Kim Wigington,
commissioner, district one.
MS. HUTTON: Suzanne Hutton, county attorney.
MR. GASTESI: Roman Gastesi, county administrator.
MR. SHILLINGER: Bob Shillinger, chief assistant
county attorney.
MS. HUTTON: I'm going to start the discussion on
this. Bob may need to chime in with some additional
facts and procedural issues. This is a case which has
not yet been served on. So we can -- we are going to
have to ask you if you will approve us waiving the
service requirement. It entails a claim for about
$600,000 from Lower Keys Medical Center for what they
claim we owed them for Baker Act services, in 2000 -- in
2006, then Commissioner Rice came to the commission and
said that Lower Keys was going to have to close their
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rr'
doors to Baker Act services if we did not provide them
with some funding for the Baker Act.
The county has, for as long as I know of, because we
are talking over 20 years, provided funding for Baker Act
services to the Guidance Clinic of the Middle Keys. And
we have provided more funding than we're required to
provide, to the Guidance Clinic, a not -for -profit. At
any rate, Lower Keys Medical Center is a for profit
entity. Nevertheless, they entered into a contract
stating that they were a not -for -profit entity. It was
our standard form, and they never pointed out that they
needed to have that changed, number one. And number two,
the contract, as with all of the other grants of funds
that we give to not -for -profit entities, provided that
they had to request and submit their paperwork to get
reimbursed, the amount that we agreed to, within a
certain time frame, at -- after the end of the fiscal
year. And this was done in 2006, for fiscal year 2006.
We entered into a second contract for fiscal year
2007. Not having ever received any paperwork or demand
from them for payment, for fiscal year 2006. Somewhere
about the time for it to become the process for us to go
into the 2008 fiscal year contract, it became apparent to
everybody that we were in dire financial straights. They
had not requested any of their funding. They had not met
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the contractural requirements. And we were not going to
enter into a contract for 2008.
At that time, they were informed that they had not
complied with the requirements for the grant contracts
that were actually approved, and that they were not going
to get paid. So they are now demanding payment for the
contract for 2006, which yes, we had a contract. The
contract for 2007 and for 2008, based on the promise that
they had expected, and also, they claim that we owed them
money under the state's statute.
Now, it has always been the county's position that
the state statutes, which they do require a match. The
county has to match state payments for Baker Act
services. But it's our position that -- and has been for
as long as I can remember, that we match the total dollar
amount that they throw at the county, regardless of what
entity gets the money. And we have given our money to
the not -for -profit Guidance Clinic, not to Lower Keys.
Yes, sir.
COMMISSIONER DIGENNARO: Question. Were they, at
that time, a not -for -profit or were they a for profit?
MS. HUTTON: No. They've always been a for profit.
COMMISSIONER DIGENNARO: They've always been a for
profit. How can they be entitled to -- how could they be
entitled to profit as a nonprofit?
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MAYOR NUGENT: Well, that was the premise of our
rejection. That they were --
COMMISSIONER CARRUTHERS: In 2008.
MS. HUTTON: No. In 2008, when I informed them they
were the not ever going to get paid anything. And I
think that by that time -- were you here?
MR. GASTESI: (Nods head.)
MS. HUTTON: Because I know, at some point, Mr.
Gastesi and I sat down with their administrator and
their finance person and explained to them that they
didn't meet the requirements of the contract. They
signed something -- we had already written this to them.
But they had signed a document which purported to be
something that they purported to be a not -for -profit.
And they didn't comply with any of the requirements
anyway. They did not submit their paperwork in a timely
basis to get reimbursed. And they were not going to get
any money.
So, anyway, right now they are suing us for,
basically, the three years, plus, they're looking for
some court order which we know would be subjected to,
where we have to pay matching by entity, that gets
funding from the state, as opposed to the county -wide
funding that we have matched through our payment to the
not -for -profit.
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MAYOR MURPHY PRO TEM: Suzanne.
MS. HUTTON: Yes.
MAYOR MURPHY PRO TEM: Suzanne, who -- the Guidance
Clinic -- well, as it stands now, it's a -- it's an
amalgamation of all three. All three have now joined
into one. They are actually the ones responsible for the
Baker Act matching patients; right, not Lower Keys
Hospital? Isn't it the Guidance Clinic that is
responsible for this?
MS. HUTTON: Well, there are Baker Act people who do
get Baker acted directly into DePoo Hospital.
MAYOR MURPHY PRO TEM: By whom?
MS. HUTTON: I don't know exactly how all of that
works out.
MAYOR MURPHY PRO TEM: The reason being because if
this went by the Guidance Clinic, then they would be the
recipients of the money, not the hospital.
MS. HUTTON: Well, apparently, the hospital does
provide some Baker Act services. But based on that, they
think they have an entitlement to a match. Not only
because -- I mean, they feel like we promised them money
based on the contracts. And they were entitled to it.
And also, they feel that they are entitled under the
state matching requirement, but we don't feel that.
MAYOR MURPHY PRO TEM: Just go with the first part.
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They think they're entitled to money, based on a
falsified agreement?
MS. HUTTON: Right.
MAYOR MURPHY PRO TEM: They know they're a
not -for -profit.
MAYOR NUGENT: Well, I don't know if it's a
falsified agreement. It was -- but they were not a
nonprofit. So my thinking is, they're not qualified to
have applied for those dollars in the first place.
MS. HUTTON: Well, they didn't apply for them
through the normal process.
COMMISSIONER CARRUTHERS: How did they apply for?
Didn't we know they were a for profit entity?
MS. HUTTON: Well, we probably should have known
that they were a for profit entity, at that time. But we
didn't. We provided them the standard rate of contract
through the HSAB process.
MAYOR NUGENT: But within that contract --
MS. HUTTON: But they didn't go through the HSAB
process. This was a direct request to a commissioner who
came to the commission concerned that they were going to
have to quit providing services if they didn't get
funding. And --
MAYOR MURPHY PRO TEM: You know the Guidance Clinic
is a nonprofit.
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MAYOR NUGENT: Uh-huh.
MAYOR MURPHY PRO TEM: Or was.
MAYOR NUGENT: It is.
MS. HUTTON: The issue is not about the Guidance
Clinic.
MAYOR MURPHY PRO TEM: I know.
MS. HUTTON: That's where the money has been going.
MAYOR MURPHY PRO TEM: But that -- yes. To the
Guidance Clinic?
MS. HUTTON: Right.
MAYOR MURPHY PRO TEM: Because that's what the HSAB
votes on?
MS. HUTTON: Right.
MAYOR MURPHY PRO TEM: Okay. So how did DePoo get
into this, that we want the money?
MS. HUTTON: They went to -- they went to
Commissioner Rice. And he was the one who brought the
item forward to the county commission. By the time the
county commission actually voted on it, he was no longer
a commissioner.
COMMISSIONER WINGINGTON: So, could we not go
through the HSAB --
MS. HUTTON: That's correct.
COMMISSIONER WINGINGTON: But the hospital did sign
something, whatever it was with the contract, saying that
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they were a nonprofit?
MS. HUTTON: That's correct.
COMMISSIONER WINGINGTON: So they say they were a
nonprofit, knowing full well they were not a nonprofit?
COMMISSIONER CARRUTHERS: Well, who --
COMMISSIONER WINGINGTON: That's the question.
COMMISSIONER CARRUTHERS: I'm confused about how
this happened. Did it flow --
MAYOR MURPHY PRO TEM: Just a minute. Oh, just a
minute.
COMMISSIONER CARRUTHERS: Did DePoo, through the
Guidance Clinic's budget?
COMMISSIONER WINGINGTON: No.
MS. HUTTON: My understanding, and this part is
third hand. My understanding is that somebody from Lower
Keys went to Commissioner Rice, as a commissioner,
stating to him that the provision of mental health
services in Key West was at risk if they didn't find
additional funding. So he came to the county commission
and said that. And -- and -- and staff was directed to
put something together to contract for them to get
$200,000. And by the time that got to the commission to
vote on, he was no longer a commissioner.
COMMISSIONER CARRUTHERS: Okay.
MAYOR MURPHY PRO TEM: Mario.
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COMMISSIONER DIGENNARO: My question is very simple.
In the contract, did it state that they were resigned and
agreed that they were not -for -profit?
MS. HUTTON: Yes. It did. There is a whole
paragraph in the standard, in all of those contracts that
says, they're not -for -profit. They have to provide
evidence of the board of directors and meet with several
other criteria.
COMMISSIONER DIGENNARO: Thank you, counsel. And my
next question is, what do you recommend?
MS. HUTTON: My recommendation is, that they have
asked us to sit down, prior to going through litigation
and try to work out something. And so my question to you
is, do you want us to entertain any kind of dollars that
we should pay because of, we originally did enter into a
contract? And --
MAYOR MURPHY PRO TEM: No.
MS. HUTTON: Okay.
MAYOR MURPHY PRO TEM: No.
MS. HUTTON: My recommendation is, I'm not making a
recommendation about the dollars. But I certainly have
to make a recommendation that we cannot give any leeway
on the matching. And that we would pay matching to
entities that get Baker Act moneys from the state because
that would either require us to increase our taxes, or
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decrease the amount of funding that we give to the
Guidance Clinic, which is a not -for -profit.
COMMISSIONER CARRUTHERS: Well, I do believe then
that I think that it's at least partially our
responsibility that if he came to us and asked for money
and it may not have been the five of us. We were not
sitting here at the time. They came and they asked for
money, and somehow we felt like we could legitimately
give it to them as a nonprofit.
COMMISSIONER WINGINGTON: As a nonprofit.
COMMISSIONER CARRUTHERS: I mean, but --
MS. HUTTON: I don't think the nonprofit part really
entered into the discussion. It happens to be that we
used a contract form that says, nonprofit. I don't think
that they ever got up in front of us, or said to any of
the commissioners, we are a not -for -profit. But they did
sign a document saying that they were.
MAYOR MURPHY PRO TEM: They didn't sign it without
reading it, I guarantee you that.
COMMISSIONER WINGINGTON: How many years does it
encompass?
MS. HUTTON: There were two years of actual
contracts. There was one year at a time; two different
contracts.
COMMISSIONER WINGINGTON: And sometime during that
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year somebody didn't say we're not paying you because
you're not a nonprofit?
MS. HUTTON: Well, they never asked for us to pay
them during that first year. They never asked us until
towards the end of the third year.
COMMISSIONER CARRUTHERS: When they hadn't gotten
the third -year money?
MS. HUTTON: Uh-huh.
COMMISSIONER WINGINGTON: I'm not bearing any
responsibility for that.
MS. HUTTON: So the argument I'm taking from you
that the direction is, we're not really to entertain any
kind of monetary amount and certainly not agreeing to any
responsibility for match?
COMMISSIONER CARRUTHERS: Well --
COMMISSIONER WINGINGTON: I hate to, but no, because
I'm worried about what would come next time something
like that happens.
COMMISSIONER CARRUTHERS: Well, they're asking for
money for three years. Why didn't they even --
MAYOR MURPHY PRO TEM: Well, yeah. That's it. I
vote no.
COMMISSIONER WINGINGTON: Well, if you figure it out
you weren't eligible for money the first year, then the
wise thing was to wait three years until it really gets
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big and hope somebody will pay for --
MS. HUTTON: Something.
COMMISSIONER WINGINGTON: -- something. But I
think --
COMMISSIONER CARRUTHERS: How do you prevent this
thing from happening in the future? How do you prevent
it from being, yeah. Sure. We will help you out. And,
you know, getting you the grant money. And then --
COMMISSIONER WINGINGTON: It should have come back
to us when they found out that's --
COMMISSIONER CARRUTHERS: Yes.
COMMISSIONER WINGINGTON: Well, I don't because they
signed something saying we're a nonprofit.
MAYOR MURPHY PRO TEM: Well, actually, I can
probably answer that in that there is someone else
handling that office now. And I think a very good lesson
was learned from that, and a few other things. So I
would relax now.
COMMISSIONER CARRUTHERS: I would also say because
as an aside, I understand that what they're doing right
now is, they're moving people who should be in DePoo,
into the hospital because it gets higher reimbursement
from the government for treating those people in the
emergency room. And the intensive care unit, which is on
a whole other caca situation that is bad for the mental
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health industry. There's only one detox bed in the whole
Keys. And I think the six people -- that's not my issue
with hospital staff heads, should be in now. You don't
have to put that on the record. Spoke too late.
MAYOR MURPHY PRO TEM: Commissioner --
COMMISSIONER WINGINGTON: -- I say the same to you,
so I was told.
MR. SHILLINGER: All right. On the -- do we still
want to have a -- go ahead and at least hear what they
have to say at the next meeting?
MAYOR MURPHY PRO TEM: Hear what who has to say?
MR. SHILLINGER: The hospital lawyers. To see --
MAYOR MURPHY PRO TEM: Sorry.
MR. SHILLINGER: -- whether we have a settlement
proposal, or do we just want to fight?
COMMISSIONER WINGINGTON: No.
MAYOR MURPHY PRO TEM: Have a conversation --
COMMISSIONER CARRUTHERS: I think we're partially
responsible for it, but the fact that they didn't even
ask for the money doesn't matter. That alone, you know,
you don't play by the rules, you don't get to play the
games. So you don't get the funds on this.
MR. SHILLINGER: All right. Just go ahead and let
this suit take its course. And -- let the suit take its
course and get served in the normal course of process?
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MAYOR MURPHY PRO TEM: Absolutely.
MS. HUTTON: Thank you. You can close this closed
session and go back into open session.
MAYOR MURPHY PRO TEM: Oh, thank you Miss Hutton.
This closed session is closed. And the open session is
now open.
(The attorney/client closed session was concluded at 3:33
P.M.)
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CERTIFICATE
STATE OF FLORIDA,
COUNTY OF MONROE
17
I, Patricia A. Zischka, certify that I was authorized to
and did stenographically report the foregoing proceedings and
the transcript is a true record.
Dated this 6th day of March, 2010.
Patricia A. Zischka
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