Item H2I
E*E_61134`
BOARD OF COUNTY CONDE[ISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 1/19/11 Division: C "un Attorncv
ow -
Bulk Item: Yes No xxx Staff Contact Person/Phone #: Bob Shilli 292-3470
AGENDA ITEM WORUNG: An attorney client closed session in the matter ot Key West 1AV,
LLC v. MonrQe County, CA K 09-215 8.
ITEM BACKGROUND: The hqpital sued the County over the funding provided for Baker
0
semces. Under F.S. 286.011(8), *e topics at the closed session will be to settl
A
negotiations and strategy sessions related to litigation expenditures. Participating, at the closed sessio
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livM be the County Commissioners, County ministrator Roman Gastesi� County Attorney Suzann
I-Iutton, Chief Assistant County Attorney Bob S 0 Ifinger, and a court reporter. 0
PREVIOUS RE VANT BOCC A M-ON: BOCC authorized closed session at its December 15,
2010 meeg.
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CONTRAC`T/AGREEME CHANGES: n/m
STAFF RECOAUKENDATIONS: n/a
1-,=
01111JIM, '-wil-111
1111 1111111q��pjjj;jm_
Z11111111111111 1111
BUDGETED: yes
REVENUE PRODUCING: no AM4JUNT PER MONTH Year
APPROVED BY: CotV Atty OMB/Purchasing R4 Managemf Lhn . t
1j.A1%1J61_3_Q1VVwV i - I
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W Ki-OlZi N 9
Px%ised 1/09
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AGENDA IWM#
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 ' g
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tern 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,
jo-__\j
Robert B. Shillinger
Monroe County Attorney
Enclosure
ORIGINAL 1
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY -CLIENT CLOSED SESSION
WEDNESDAY, JANUARY 19, 2011
2:30 - 3:05 PM
RE: KEY WEST HMA, LLC v. MONROE COUNTY
CASE NO. CA-K-09-2158
HELD AT
Harvey Government Center
1200 Truman Avenue
Key West, Florida 33040
COUNTY COMMISSIONERS:
Heather Carruthers, Mayor
Kim Wigington, County Commissioner
David Rice, County Commissioner
George Neugent, County Commissioner
Sylvia Murphy, County Commissioner
STAFF:
Suzanne A. Hutton, County Attorney
Robert B. Shillinger, Chief Assistant County Attorney
Roman Gastesi, County Administrator
All Keys Reporting
Olde Town Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, 2nd Floor
Marathon Key West
305-289-1201 305-294-2601
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P R O C E E D I N G S
MS. HUTTON: Okay. The Mayor has called the
open session back into session. We need to go into
a closed session regarding Key West HMA, LLC v.
Monroe County, CA K 09-2158.
Pursuant to Section 286.011, Florida Statutes,
the closed attorney -client session will be held. It
is estimated the meeting will take approximately
fifteen to twenty minutes. The persons attending
the meeting will be the County Commissioners, County
Administrator Roman Gastesi, County Attorney Suzanne
Hutton, Chief Assistant County Attorney Bob
Shillinger, and a certified court reporter. By law
no one else may remain in the room. The
Commissioners, County Administrator, attorneys, and
the court reporter will now remain in the meeting
room, and all other persons are required to leave
the room.
Mayor, will you now close the open session?
MAYOR CARRUTHERS: It's closed.
MS. HUTTON: Madam Mayor, if you will call the
closed session to order.
MAYOR CARRUTHERS: The closed session H-2 is
now called to order.
MS. HUTTON: For the record, this meeting is
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being held upon the request of County Attorney
Suzanne Hutton, who announced at a prior BOCC
Meeting held on December 15th that I needed advice
in the matter of Key West HMA, LLC v. Monroe County,
CA K 09-2158. At that meeting, the Board approved
holding today's closed session and public notice was
given through public announcement of the meeting at
the December 15th BOCC meeting and through
publication of the January 19th BOCC meeting agenda
on the County's website.
For the record, and the benefit of the court
reporter, each of us will identify ourselves.
COMMISSIONER WIGINGTON: Kim Wigington,
District 1, County Commissioner.
COMMISSIONER RICE: David Rice, District 4,
County Commissioner.
MAYOR CARRUTHERS: Heather Carruthers, District
3, County Commissioner.
COMMISSIONER NEUGENT: George Neugent, District
2, County Commissioner.
COMMISSIONER MURPHY: Sylvia Murphy, District
5, County Commissioner.
MS. HUTTON: Suzanne Hutton, County Attorney.
MR. GASTESI: Roman Gastesi, County
Administrator.
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MR. SHILLINGER: Bob Shillinger, Chief
Assistant County Attorney.
MS. HUTTON: Just as a reminder, we will be
discussing settlement negotiations and strategy
relating to litigation expenditures. You cannot
take any decisive action at this meeting. We can
only provide information and you can provide
direction to the attorneys. Any decisions the Board
makes will have to be done in a public meeting.
I'm going to turn this over to Mr. Shillinger.
MR. SHILLINGER: Good afternoon again. The
case we're dealing with basically the dispute we're
having with two hospitals, Key West HMA, LLC v.
Monroe County over Baker Act funding. We had a
prior discussion real briefly at the close of the
last meeting where I gave you an update on the
litigation, and this is the slide that basically
outlined it. What we have is a dispute over the
Baker Act services. The statute is listed there.
Judge Audlin has ruled that we have a statutory duty
to provide a 25-percent match of what DCF provides,
has awarded the sum of $441,666.33 for matching
funds that match up with their contracts from DCF
from 2005 to 2010. He did not award pre -judgment
interest, no attorney's fees were awarded, so it was
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just the 441,666.
Now, that final judgment wasn't entered, the
order wasn't entered until January, so we still have
within our thirty days to take an appeal on this
decision, but we're at a critical juncture now if we
wanted it to go forward.
In addition to the statutory obligation they
had sued us under three contracts that we had with
dePoo, 200,000, 200,000, and 190,000 for the fiscal
years mentioned up there, the last of which we never
actually executed and the County Commission withdrew
its approval of it before it was executed. So there
are some problems on their side of the case, as
well.
Notwithstanding all of that, they made an offer
to settle, and this is a slide from last month, as
well, where you take 441,000 that's been awarded by
the court and their view of the world an additional
$340,000 less a credit for about 250 because they're
giving us a credit for the -- they're not seeking to
get paid twice. If we've paid them under the
statute we don't need to pay them under the
contract. So it knocks that number down from
590,000 down to 340,000. So it's a total claim of
781 plus interest, fees, costs, and they made a
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discounted settlement offer of 730 and I asked for
authority last month to come back and negotiate some
additional to see if we could get that number lower.
And I didn't want to give you our defenses last
month in an open session because I didn't want to
lay out my candid thoughts on them in an open
session for all to hear. But our basic defenses,
these are the highlights of them. The mandamus
action, the judgment for $441,000, we think that
Judge Audlin jumped the gun. He set the case
procedurally for oral argument, which is basically
an appellate proceeding instead of a trial on the
merits. So we basically had a summary trial with no
opportunity to put in evidence other than affidavits
ahead of time. Procedurally we think he messed up
on that. We think that the appellate court would
reverse it and bring it back.
That's not to say that we might not be in the
same position after a trial. He's pretty much
indicated how he interprets the statute and unless
the appellate court ruled upon it differently we
could see where this would end up even if we were
able to put on the evidence we thought was
appropriate. So we could win the battle and lose
the war.
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The contract claims, our general position is
that they're not ripe because they haven't put them
in a line for payment by providing the proper
documentation that's required by the contracts as
interpreted by the Clerk. As we all know, in a
non -charter county like Monroe the Clerk is the
independent auditor, comptroller. We can authorize
payment all we want. If it doesn't satisfy his
standards he's not going to release a check and
there's nothing that we can do to force it. And so
his people have testified, have given me, haven't
testified officially yet, but we've had some
sit-down discussions and they said no. This is not
in order. We would not have authorized payment on
this.
So we have some very strong and credible
contract defenses. Nevertheless, we do have an
agreement, we did agree to pay for the services,
they've provided the service. So under at least
some sort of equitable claim for relief,
reimbursement, they probably would get awarded
something. Even if we can prevail on the specific
contract defenses, there is an equitable estoppel
claim in there that would allow a court to award
something to compensate them and make them whole.
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So on the two main issues, yeah, we might
actually, again, win the battle, lose the war.
Somewhere down the road we might end up having to
pay even more because we'd end up paying a similar
amount plus the amount of attorney's fees incurred
on appeal at a trial, and if the contracts are found
to be upheld, and they were, the court doesn't
accept our contract defense claims, there may be
pre -judgment interest that we would be liable for,
as well.
I know in public discussions there has been
some discussion of, well, the contract said you had
to be a nonprofit. You're really a profit
organization. I've got to tell you that that's not
necessarily a material issue. Whatever their,
however their organized, as a for profit
corporation, a nonprofit corporation, a limited
liability company, how does that really affect their
ability to provide the service which they're
contracted for? It really doesn't.
And additionally the contracts were our form
contracts. And there's a principle in contract law
that you construe the contract against the drafter,
and if it was our language and we inserted it and
they signed it because they figured that was the way
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they were getting paid, it's going to be construed
to our detriment, not to their detriment. So I
really don't put a lot of faith that that will
ultimately allow us to prevail.
So we started to negotiate, and what I took was
the amount the court awarded plus what they had
indicated that they had spent on attorney's fees to
date regarding this matter and I started from there.
I said let's just make you whole, you'll walk away,
520,000, we're done. And that was based on some
careful tap-dancing, quite candidly, in the letter
that I sent to them, but basically I pointed out the
defects in the mandamus judgment, the deficiencies
in the invoices, plus an estimation on my part of
the cost of going forward with litigation, the risk
of an adverse judgment higher than the 730 that had
been offered, and on our worst day I would think
we'd be somewhere in the 900 to a million range if
we lost at the end of the day.
And again, we contracted for the services, the
services were provided, so we owe them something, I
mean. We actually were able to find a number in the
middle, it happens to be right in the middle,
625,000. That would be a complete settlement of all
existing claims and the proverbial tax, tags, title,
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LM
drive the car off the lot, you know, no additional
costs.
We haven't worked out all the language. This
has been happening within the last several days that
we've gotten to this point. I would have hoped to
have brought to you a settlement agreement. I had a
placeholder item on the agenda to do that. I don't
have a settlement agreement or an LLU that we can
commit to at this point, but I at least want to get
some direction as to the terms on whether there's
even support on this. I made it clear that I can't
bind you, I need to come back to you with a final
agreement, but at least would want to make sure that
I haven't gone too far off the reservation in
negotiating some terms.
So let me go through them. The contemplated,
we would pay them 625,000, it would settle the
lawsuit. What they are most interested in, and
different parts of the organization have expressed
different views, according to their lawyer, parts of
them obviously want to get compensated for the past
things but there are other parts that want to deal
with the big picture of going forward and setting up
the relationship so we don't have this type of
dispute in the future. And so we're looking for a
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way in which to craft an agreement where we'd agree
to the protocol of how they're going to submit
requests for payment, how they're going to be
processed, and obviously it has to comport with
whatever the Clerk's willing to pay. And so that's
where we're at, is trying to work out some of those
terms.
So initially I had thought it could be a very
simple matter of DCF has the contract with them,
when they get their annual contract the hospital
would send a copy over to us, we would then see it
and budget for it, knowing that, okay, let's do the
math, our maximum exposure is going to be this
amount, and then as they billed DCF and got paid by
DCF they'd show us proof of payment, acknowledge
that there weren't any other local funds or if there
were give us a discount for those local funds, and
then we'd divide by three and write them a check for
that amount. That approach may be too simple to
satisfy the Clerk and his concerns, so we're still
working on that. He may want some independent
documentation. We're trying to see if we can reach
agreement on the type of documentation that, see if
the Clerk will accept the same documentation which
DCF accepts. Obviously the Clerk doesn't answer to
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the same standards as DCF. He's an independent
constitutional office, he has a statutory duty, a
constitutional duty to make sure that every dollar
is spent appropriately. So we're going to be very
careful that we don't diverge from that position.
But before we even get any further on this, is
this something that this Commission could support?
COMMISSIONER WIGINGTON: For argument's sake
let's say that we do approve the 625. Are you
saying you feel like they can't meet the
documentation in order to be paid anyway? Half of
that, a third of that, none of that?
MR. SHILLINGER: What I think, that if we went
to trial on the issue is yes, we would be able to
bring in folks from the Finance Department who would
say the documentation that they've produced so far
to date we would not render payment on. We would
argue to the court, independent officer has said he
won't release the check. We're not breaching the
contract. The contract spells out the kind of
documentation you're supposed to do.
COMMISSIONER WIGINGTON: If we settle that
amount and we do not go to court, we've settled that
amount, do you have to write the check, or do they
still have to meet the documentation?
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MS. HUTTON: No. They don't have to meet the
documentation.
MR. SHILLINGER: We could work this a couple of
different ways. If we got the court to approve the
settlement agreement that covers the Clerk in terms
of his responsibilities and he says I'm comfortable
with it if the court has ordered it, then the Clerk
doesn't have that ability to object. But you still
have that process objection of how can you prove
that you really were entitled to that?
COMMISSIONER WIGINGTON: I'm not sure I'm
comfortable making the Clerk comfortable by just
having a court --
MR. SHILLINGER: Bless it.
COMMISSIONER WIGINGTON: Bless it.
MR. SHILLINGER: I understand.
COMMISSIONER WIGINGTON: I want it to meet the
same criteria that it should meet.
MR. SHILLINGER: Should have met for the
contract. And part of the issue in the history of
this is we had an employee that was sitting on these
invoices and not communicating with either side as
to what, that employee is no longer with us, by the
way, but wasn't communicating as to what the
deficiencies were, what needed to be done, and this
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just kind of sat for a couple of years.
MS. HUTTON: He wasn't turning it over to the
Clerk and he wasn't telling the hospital that they
needed to provide more before he did turn it over to
the Clerk.
COMMISSIONER WIGINGTON: This isn't too long
ago. They should still have those records.
MR. SHILLINGER: They have some of the records,
and we can dig some more on this. We haven't
explored all of the records that they have, so.
COMMISSIONER WIGINGTON: But you made the
statement that the services were rendered.
MR. SHILLINGER: Well, I make that statement
based on the payment by DCF, that they were
satisfied that the services were rendered and so
they had made their payments.
MAYOR CARRUTHERS: Do they have the same
standard of documentation that we do?
MR. SHILLINGER: I'm trying to see whether, I
don't know they have the same standard. I'm trying
to see whether the Clerk would accept what DCF
accepts, and so I'm in the process of getting that
information, that's what I've been working some of
today information, to see if the Clerk is
comfortable with what DCF accepts. The Clerk has
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said he'll look at that. He's not sure whether it
will be sufficient for him or not, but he's at least
willing to consider that.
COMMISSIONER WIGINGTON: Am I right in thinking
that DCF claims are similar to if not exactly like
Medicaid claims?
COMMISSIONER RICE: No. They're under
contract. And my experience with this is
Mr. Kolhage requires an entirely different process
to approve payment.
MR. SHILLINGER: But generally the Clerk is
paying on a contract where we would have more
specific controls on what is required to be
provided. When you have a statutory duty that says
they pay this amount, do the math, you pay one-third
of that amount, we're in a different ball game than
when we have a simple contract.
COMMISSIONER WIGINGTON: So the court could say
forget your contract, you have a statutory
obligation, they don't have to meet the standards of
your contract?
MR. SHILLINGER: Right. And we also have some,
just to further complicate things, the legislature
adopted some amendments to the Prompt Pay Act which
now say you have to spell out specifically in your
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contract the documentation that you require in order
to hold up payment on the basis of a lack of
documentation. Now, that would be an issue for
going forward in future contracts. We can't
necessarily wrap that onto this argument, but just
knowing that for the future if we were to settle
this with some sort of agreement that spelled out
what was required, that's all we could spell out in
what was required. We couldn't come up with
additional, with the reasonable prudent accounting
standards or whatever the industry term is for what
the Clerk has relied on in the past in identifying
standards, which candidly have been sometimes
difficult to pin the Clerk down on what he's looking
for.
COMMISSIONER WIGINGTON: But do you think the
$625,000 worth of services have been provided?
MR. SHILLINGER: Yes.
COMMISSIONER RICE: Could I ask you a question?
MAYOR CARRUTHERS: Well, just, Roman has been
waving his hand around.
MR. GASTESI: Instead of us helping the Clerk
justify payment why can't the Clerk help us justify
not paying?
MR. SHILLINGER: Well, and he's prepared to do
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that in the context if we go forward with
litigation, but understand, I think that we stand to
end up paying more than the 625 at the end of the
day. We stand a reasonable chance of ending up
paying more than 625 if we do that.
COMMISSIONER NEUGENT: Bob, in conjunction with
what Roman just said, in the private sector and
anywhere else in the real world you have to present
a legitimate, appropriate billing process for
payment or you don't get paid.
MR. SHILLINGER: Absolutely.
COMMISSIONER NEUGENT: So if our position is
that they didn't present that, then I don't, yes, we
may have to pay but, you know, produce the
appropriate and proper, bona fide billing.
MAYOR CARRUTHERS: Except it sounds like this
statutory arrangement that we have trumps our
requirements.
MS. HUTTON: Well, I think the 400, if we can
back up a second, the 441 that the judge ordered was
based on the 25 percent of our fourth which matches
three -fourths that the State already gave them.
Right?
MR. SHILLINGER: Right.
MS. HUTTON: So what we stand to possibly lose
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is the difference between our statutory requirement
and what our contractual amount was if the court
construes the contract against us and says your
requirements should be, you know, should have been
able to accept what DCF received. Actually, I don't
know what was provided. I know at some point in
time I did look at some of their documentation. My
recollection was it was more in the nature of
synopses or computer printouts of things as opposed
to copies of individual documentations of specific
services provided to any specific person. I think
it was more a conglomeration of information or a
tally of information as opposed to individual
documentation, which I think is what the Clerk is
looking for.
COMMISSIONER RICE: Are we concerned -- I guess
I wanted to direct this to Kim. Are you concerned
about them documenting adequately to receive payment
for services previously provided, or are you talking
about documenting adequately for services yet to be
provided in the future?
COMMISSIONER WIGINGTON: Well, I think the
future definitely needs to be taken care of, but I
hate for us to pay for services possibly not
provided, and I guess that's what I was trying to
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get a comfort level with.
COMMISSIONER RICE: I don't think we have a leg
to stand on. The law says that you pay 25 percent.
So that part's covered.
COMMISSIONER WIGINGTON: Regardless of what our
contract says?
MS. HUTTON: As far as the documentation. They
obviously had some documentation. It satisfied DCF.
The statute does not say that we pay a fourth of
what we think is permissible reimbursement. It's
we'll match our share against what the State
provides.
MR. SHILLINGER: Right. And there are some
audit provisions built into the statute, so we can
investigate if we think it appropriate.
COMMISSIONER WIGINGTON: Hypothetical, has
nothing to do with this particular entity, but just
the way payment can be made. Some medical
organization in Miami commits fraud and bills for a
hundred and fifty million dollars and is paid by
DCF. The county gets stuck with 25 percent of that?
COMMISSIONER RICE: Trust me. First of all,
your Baker Act payment from the State is a hunk of
money. It doesn't say that you treat X number of
patients for that money. It's twelve months' worth
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of funding to provide what is essentially an
unlimited amount of Baker Act services, whether you
have thirty patients a year that you're treating or
six hundred patients a year that you're treating.
COMMISSIONER WIGINGTON: I got you. Okay.
COMMISSIONER RICE: So it's really not broken
down by individuals that receive treatment like you
would expect in a medical office. At the beginning
of the year you know how much, give or take some
years because they will take some away from you
sometime during the year or sometimes a little extra
comes in, fine, but historically it's never impacted
the County's percentage. You see, you really aren't
paying for services in a way, because the State law
requires you to match -a percentage.
COMMISSIONER WIGINGTON: Understood. Okay.
MR. SHILLINGER: Right. And there's a
provision in the statute that says that if they
receive other matching local funds, someone gives
them a bequest on a will or the city decides to kick
in some money or the school board or something like
that, then we get a credit for what other monies are
raised locally. And we can always send them a
ten -dollar check and see if they actually give us
credit for it.
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So again, I mean, this is, it's litigation.
It's still fluid. I was hoping to have this nailed
down a little bit better coming in today. We
weren't able to do that. But I would like to at
least understand whether there's a comfort level at
the 625 number or whether I just need to start
gearing up for trial and start taking depositions
and spending money on experts.
COMMISSIONER WIGINGTON: It doesn't look like
we're going to get anywhere.
MAYOR CARRUTHERS: Yeah. It looks like all
we're going to do is waste time.
COMMISSIONER RICE: I think we've got to be
comfortable with it whether we are or not.
COMMISSIONER NEUGENT: Madam Mayor?
MAYOR CARRUTHERS: It's a heck of a system,
though, isn't it?
COMMISSIONER RICE: Yeah.
COMMISSIONER NEUGENT: Bob, you said that
nonprofit, profit doesn't matter at this point in
time. However, in the future I would think it does
matter based upon what our policy is as far as
dealing with a nonprofit. So where do we go from
here when we quit doing business with these guys?
MR. SHILLINGER: I don't think you're ever
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going to quit doing business with them as long as
they're getting DCF contracts. But in terms of
whether you can fund them differently and give them
additional funds or give another organization that
is a nonprofit additional funds, that might be a
material difference to treat this situation
different than another entity that's providing a
similar service.
COMMISSIONER NEUGENT: I'm not saying we're not
going to have to pay for it for somebody, but our
policy says that we will deal with a nonprofit.
COMMISSIONER WIGINGTON: But if they're getting
money from DCF, it sounds like it doesn't matter.
MS. HUTTON: But that's our policy for the
human services organizations.
MR. SHILLINGER: Making voluntary --
MS. HUTTON: Voluntarily --
MR. SHILLINGER: Contributions.
MS. HUTTON: -- giving them grants of money to
help them operate to provide services we might
otherwise have to provide. This is not a human
service organization. It's a different kettle of
fish.
COMMISSIONER RICE: We could one day be dealing
with a not -for -profit when HMA's contract expires
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and they may bring in a new system there that's
not -for -profit because these days --
COMMISSIONER NEUGENT: Didn't the clinic
provide the service?
COMMISSIONER RICE: We provided it there. They
provided it in their psychiatric unit down here.
COMMISSIONER MURPHY: But even if it's
nonprofit, David, I think I follow Suzanne, it's not
going to come under the same heading as the other
nonprofits.
COMMISSIONER RICE: It's still covered by the
State.
COMMISSIONER MURPHY:
a must.
COMMISSIONER RICE:
That's right. And it is
Yeah. I think we have to
do this.
COMMISSIONER WIGINGTON: It sounds like it.
COMMISSIONER RICE: We don't have to like it.
And I particularly don't because I think I can take
the credit when I was in office before for trying to
help them out by getting their State dollars
matched, and then for whatever reason, I was told
they didn't bill, maybe it was in the bottom drawer
of our employee's desk, but I never figured out why
they didn't take advantage of that funding for a
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couple of years or so. So I think we're in a
corner.
COMMISSIONER WIGINGTON: Can you go back and
try to get it down even more, though?
MR. SHILLINGER: I could try. I mean, I told
them, we played the dicker game where they were at
730, we were at 520, they went to a number, I went
to a number, will you recommend this number, and I
said I would recommend settlement. I obviously
can't commit you to accepting the 625.
COMMISSIONER MURPHY: You haggled.
MR. SHILLINGER: We haggled, and we ended up in
the middle.
COMMISSIONER WIGINGTON: You can't go back and
say that we told you to take it to court unless they
unless they come in with five?
MR. SHILLINGER: I could certainly do that. I
don't know that I would recommend that that is the
wisest course of action.
COMMISSIONER MURPHY: I don't like that.
That's risky.
MR. SHILLINGER: But we can try and see if
they'll take a little bit shorter of a haircut.
But, you know, understand that they have won so far.
COMMISSIONER WIGINGTON: I know. Yeah.
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MR. SHILLINGER: So they're holding more of the
cards than we are. And while I think they're
somewhat less comfortable in their position that
they're in after the counter-offer letter that I
wrote pointing out the deficiencies as I saw them,
they're not necessarily willing to run up the white
flag and accept as gospel my version of the world.
COMMISSIONER WIGINGTON: Okay.
MR. SHILLINGER: And I will candidly admit in
the confines of this room and the sacredness of the
closed session that it was an advocacy piece. I had
on my hip waders and tap shoes at the same time. So
if you can imagine that picture.
COMMISSIONER MURPHY: If this is money that we
signed on for for a service that we received --
MAYOR CARRUTHERS: I think the big thing that's
challenging us is just that there doesn't seem to be
any documentation that we received the service
although we believe we did.
MR. SHILLINGER: Yes.
MAYOR CARRUTHERS: But apparently the State
doesn't give a hoot.
COMMISSIONER RICE: Well, they know what
they've provided. They do the audits yearly, and
I'm sure there's a report in the hospital somewhere.
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COMMISSIONER WIGINGTON: And if they were
refusing to provide the service and just billing us
for it, it would be a different story altogether.
COMMISSIONER RICE: Yeah. I don't doubt that
they provided the service.
COMMISSIONER MURPHY: Pay it.
MAYOR CARRUTHERS: So do you feel you have
sufficient --
COMMISSIONER WIGINGTON: Can we negotiate it
before we pay it?
MR. SHILLINGER: Absolutely.
MS. HUTTON: I have a couple of concerns.
Right now we've got a judgment which either they
could appeal because they feel some things were left
out or we could appeal. What's the time frame for
you to get an agreement that the Commission has
signed on to --
MR. SHILLINGER: The beginning of February. So
we're not going to have time to, unless we call a
special meeting with the terms, you know, we have a
written settlement agreement, we're going to have to
make a decision on whether we take an appeal on that
or not. Now, all that means is we file the $350
filing fee, I write a one-piece pleading that says
Notice of Appeal, see attached order, and staple it
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to it and mail it. And so taking an appeal is more
expensive because of the filing fee, but it doesn't
involve a lot of time or effort to appeal that
decision, and that will keep that option open while
we continue to negotiate.
COMMISSIONER WIGINGTON: Now, if we had a
contract, whether we paid it or not, the money was
budgeted for two years anyway. We didn't have a
contract, so the money may not have been budgeted.
MS. HUTTON: Well, actually, the first year it
really wasn't budgeted because it was done at the
end of the fiscal year. It was done retroactively
at the end of the fiscal year.
COMMISSIONER WIGINGTON: Okay. What's our
funding source for this, Roman?
MR. GASTESI: That's the three -percent raise
that we were going to give the employees this year.
So it's around 625,000.
COMMISSIONER WIGINGTON: Oh, that's going to go
over well, Bob.
MR. GASTESI: No. I guess it's just going to
be general fund.
MR. SHILLINGER: Yeah. I talked to Tina and
she says we do have reserves. She and I have been
talking about this case for a while, and so she's
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aware of that amount.
COMMISSIONER WIGINGTON: Well, how can we do
this? Can we say negotiate and settle your best up
to 625, attaboy if you get it down to five?
MR. SHILLINGER: If that message has support
from a majority of you I can try and attempt to do
that, bring it down under five and at least come
back with, you know, a formal agreement. What I
would want to do is at least have the authority if
we can't reach an agreement in principle by the time
we need to take an appeal to at least file the
appeal to keep that matter open. Now, understand, I
put about a three- to five -percent chance of
actually overturning the ultimate outcome. We may
get it on the procedural grounds, it'll come back,
and we'll have to do it all over again. The benefit
of doing that, though, is the date of post -judgment
interest instead of running from November 24, 2010,
would run from some date in the future, and if it is
an extended period of time that could represent some
savings.
COMMISSIONER WIGINGTON: I'm comfortable saying
get it as close to five as you can, knowing that you
can --
MR. SHILLINGER: When you say get it close to
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five, do you mean 500 or 599? I understood the
Administrator to say a number with a five on the
front of it.
COMMISSIONER WIGINGTON: Yeah. Get it as low
as possible. I like 500, actually, but knowing that
you can do 625 if you have to.
MR. SHILLINGER: Okay.
COMMISSIONER WIGINGTON: And knowing that the
County employees will blame you for not getting a
raise.
COMMISSIONER MURPHY: He's to blame for global
warming. Why not that?
MAYOR CARRUTHERS: I think that whoever this
employee is who kept the stuff in his drawer is who
is to blame.
COMMISSIONER MURPHY: But he's gone, so we'll
blame Bob.
MR. GASTESI: That was my first dismissal, by
the way, when I started. That was right when I
started.
MR. SHILLINGER: All right. Now, in terms of
coming up with working out a framework for future
payments, are we interested, do you have any
direction you want to give me there, or as long as
the Clerk's happy with it, the Board'll be happy
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with it?
MAYOR CARRUTHERS: Roman?
MR. GASTESI: Is it possible to split it over
two fiscal years?
COMMISSIONER WIGINGTON: Oh, that's a good
idea.
MR. SHILLINGER: They might be willing to
accept the lump payment over two, and we might end
up having to pay more to do that. You know, instead
of going into the fives they might say we'll take
625 and split it over two fiscal years, you know,
six months apart or eight months apart or nine
months apart. I mean, I can play with that.
MS. HUTTON: That would be helpful.
MR. SHILLINGER: That would be helpful.
COMMISSIONER WIGINGTON: You can get five now
or 550 in two payments.
MR. SHILLINGER: But in terms of the process
going forward, is there any direction you want to
give me on what you'd be comfortable with in terms
of requiring documentation? My idea of a simple,
you know, DCF requires this, we do the math?
COMMISSIONER WIGINGTON: No. Let's satisfy the
Clerk on this one, and if he doesn't pay it then
we'll deal with it.
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Don't you think?
COMMISSIONER RICE: That's fine with me.
MR. SHILLINGER: Okay.
COMMISSIONER NEUGENT: Of course I would bet
they'd probably tack on ten percent interest.
MR. SHILLINGER: Pre -judgment interest on the
statutory amount is what they can get as a
post -judgment interest because we have sovereign
immunity for the pre -judgment interest.
All right. I think I have my direction.
COMMISSIONER WIGINGTON: And let's not let this
thing happen again.
COMMISSIONER NEUGENT: I agree.
MAYOR CARRUTHERS: I guess we should have come
back at 1:30.
MR. SHILLINGER: All right. Thank you.
MS. HUTTON: Mayor, if you will close the
closed session?
MAYOR CARRUTHERS: The closed session is
closed.
(Proceedings concluded at 3:05 p.m.)
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V
32
C E R T I F I C A T E
STATE OF FLORIDA )
COUNTY OF MONROE )
I, Susan L. McTaggart, Court Reporter and Notary
Public, State of Florida at Large, do hereby certify that I
was authorized to and did report by stenotype the
proceedings in the above -entitled matter, and that the
transcript is a true record of said proceedings.
Dated this 29th day of January, 2011.
Susan L. McTaggart, Court Reporter
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