Fmr. Broward Hospital District Lawyer Demands Probe of District's Current Lawyer
In a letter dated June 1, Truhe points to how he and the former general counsel, Marc Goldstone, were both dismissed in an "emergency" action just before Goldstone could give the board legal advice as to how to proceed after an investigation of Commissioner Joseph Cobo turned up evidence of "credible" criminal allegations. In those attorneys' absence, Goren recommended that the board send the investigative report to the governor, who appointed Cobo, rather than to the Florida Commission on Ethics (FCE) or the State Attorneys Office for possible criminal prosecution. Truhe writes:
That it was the first official act of the General Counsel whose retention had been approved only moments before on the agenda raises additional questions about the timing and motivation for the emergency dismissal of the previous General Counsel.In his letter, Truhe insists that Goren gave the board "clearly erroneous advice" when at the May 27 meeting he cautioned commissioners against sending the investigation to the FCE unless they had "personal knowledge" of Cobo's ethical violations. Truhe rules out two possibilities -- that Goren "knowingly misled" the commission or that he made a mistake in his legal analysis.
The third option is that [Goren] didn't mislead the Board at all, because he was instructed to craft an argument for sending the report to the Governor instead of the FCE because the Board had already reached consensus in private as to the desired disposition.If Goldstone was prepared to steer the report of Cobo's ethical violations to the FCE, exposing Cobo to corruption charges, Truhe writes that "the question naturally arises whether there is a connection -- coincidence being hard to accept under the circumstances."
Truhe's letter follows the jump.
Michael Fernandez, Chair Board of Commissioners North Broward Hospital District
c/o Frank Nask, CEO
303 S.E. 17th Street
Ft. Lauderdale, FL 33316
June 1, 2009
This is to request a formal and public investigation into the circumstances surrounding the advice given by the District's General Counsel, Sam Goren, at the public meeting of the Board on May 27, 2009. For reasons I will explain, the advice was substantively flawed, but more importantly, directly predicated upon an egregious misrepresentation of fact regarding the Florida Commision on Ethics (FCE). That it was the first official act of the General Counsel whose retention had been approved only moments before on the agenda raises additional questions about the timing and motivation for the emergency dismissal of the previous General Counsel.
First with respect to substance, Mr. Goldberg's report explains why referral to the FCE is appropriate. He notes the limitations of his report as including his lack of subpoena power (and with it the power to place witnesses under oath - making Mr. Michelson's complaint on the subject rather curious). Mr. Goldberg states clearly that a definitive resolution of the issues reported requires a forum which can accord due process (including right to counsel) to the parties, including Commissioner Cobo - specifically, the FCE. The Governor does not have such a forum at his disposal, and indeed could properly respond to the contemplated submission of the Goldberg report by referring it to the FCE on the grounds that any action based on Mr. Goldberg's conditioned findings (essentially merely probable cause) would be totally inappropriate. Mr. Goren's thin premise for referral to the Governor as the preferred option was merely that the Commissioners serve at the pleasure of the Governor. True - but irrelevant to whether such a referral at this time is appropriate given the nature of the report.
The more serious issue with Mr. Goren's recommendation relates to his discussion of why the options for referral to the FCE were problematic, to the point of warranting caution against considering same. The record of the meeting on May 27 will reflect the deliberate, carefully prepared and pointed adivce on the two options involving the FCE. He told you that FCE complaints must be under oath and must be based on personal knowledge. He even separated option 3 (submission by the Board) from option 4 (submission by an individual Commissioner) to warn anyone who might be thinking of going it alone that it would be his or her personal knowledge that was required. He led you to believe that you had to have witnessed the inappropriate conduct to properly execute the oath, knowing full well that no commissioner had such personal knowledge, almost necessarily so given the nature of the alleged misconduct (individual direct contact with management on operational matters outside the proceedings of the Board in violation of the District Charter).
The proposition that you can't send a $167,000 report by a former prosecutor retained to investigate and prepare a report of findings on ethics charges against a state official to a state ethics commission should have struck someone as curious on its face.
Mr. Goren's representation as to the oath standard for FCE complaints is absolutely false. There are two general standards for oaths for most common legal purposes. At one end of the spectrum is that the witness affirms the facts to be true and correct, based on his or her own personal knowledge. At the exact opposite end of the spectrum is an affirmation that the facts are true and correct to the best of one's knowledge and belief. The one page FCE complaint form, readily acessible on its website, contains the oath, which reads:
I, the person bringing this complaint, do depose on oath or affirmation and say that the facts set forth in the foregoing complaint and attachments thereto are true and correct to the best of my knowledge and belief.Because the Board's decision was predicated upon the clearly erroneous advice regarding submission to the FCE, and the absence of any advice as to the substantive and procedural reasons why submission to the Governor was not proper, I submit that the Board should reconsider its disposition of the Goldberg report, at a minimum.
I submit further that the Board should conduct an inquiry in to how the General Counsel made the misrepresentation. There would appear three possibilities. First, that Mr. Goren knowingly misled you. There being no plausible motive, this possibility appears unlikely. Second, that Mr. Goren made a simple mistake. This would seem similarly unlikely, given the stark contrast between the two oath standards familiar to any attorney, how carefully the argument against the FCE option was crafted, and how painstakingly specific he was about the oath issue, it being, of course, the very premise of his position. It seems implausible in the extreme that Mr. Goren didn't look at the oath at all before being so categorical about its import, or that he doesn't understand it. The third option is that he didn't mislead the Board at all, because he was instructed to craft an argument for sending the report to the Governor instead of the FCE because the Board had already reached consensus in private as to the desired disposition, which would explain the explicit request by the chair that Mr. Goren identify the single preferred option. Once counsel advised as instructed, the Commissioners could then appear to have acted beyond reproach by simply accepting the seemingly well reasoned advice of counsel. Of course this option brings with it the inescapable conclusion that Mr. Goren and the Board knowingly created a misleading public record as to the basis for the referral to the Governor. I could be wrong in dismissing options one and two, and there may be a fourth, but the explanation, whatever it may be, needs to be disclosed.
Given how curiously suspect the advice of Mr. Goren was, and the timing of Mr. Goren's appointment as GC (approved just moments before giving the advice and following the emergency May 14 Board meeting to remove the incumbent), the question naturally arises whether there is a connection - coincidence being hard to accept under the circumstances. The incumbent had already made known to Chairman Fernandez and Mr. Nask his opinion that referral to the FCE was among the few viable options. His removal and replacement with an attorney whose first official act is to misstate the law, whatever the explanation, leading directly to the opposite disposition of the Goldberg report, obviously warrants a thorough review and public disclosure.
Joseph. V. Truhe, Jr.