By Dan Christensen, BrowardBulldog.org
Two more South Florida judges may have violated ethics rules by serving on the board of a private company that controls public health care spending.
Those Miami-Dade judges sit on the board of a nonprofit corporation that is paid by the Department of Children and Families to administer tens of millions of behavioral healthcare dollars.
A Florida Supreme Court ethics committee issued an advisory opinion in June that said judges should not serve on such boards.
Four judges, including the chief judge of the Fourth District Court of Appeal, recently quit a similar healthcare board in Broward because of the ethics ruling.
Nevertheless, Miami-Dade County Judge Steven Leifman and Circuit Judge Jeri Beth Cohen, the court system’s gurus for mental health and substance abuse, have chosen to remain as volunteer board members of the Miami-based South Florida Behavioral Health Network. Leifman is board chair.
Leifman and Cohen say the Judicial Ethics Advisory Committee’s June 11 opinion is a narrowly drawn ruling that doesn’t apply to their situation. They are resisting it out of concern that their forced departure would seriously weaken an organization that “really serves the public,” said Cohen.
The judges together have asked their court’s general counsel to research the ethics ruling with an eye towards possibly getting the situation changed.
“We’re getting a second opinion,” said Leifman, a county court criminal division judge. “We’re in a holding pattern.”
Both judges said that if becomes clear they should step down, they will.
Cohen said the circumstances in Miami-Dade are not the same as in Broward.
“I think it’s a very different situation than what happened in Broward,” said Cohen, a circuit court judge in the unified family and juvenile divisions. “We were never put there to impress anybody.”
The Supreme Court’s ethics committee offers advisory opinions to judges and judicial candidates about whether their conduct might violate Florida’s Code of Judicial Conduct.
While opinions are only advisory, conduct consistent with an opinion may be evidence of good faith on the part of the judge in disciplinary proceedings.
SPIN OFF ISSUE
Whether judges should serve on the boards of private companies that have or are seeking government contracts arose as an issue as DCF spins off services it once handled.
An unidentified judge in Palm Beach asked the ethics committee its opinion after he was asked to serve on the board of a managing entity being set up there to administer $52 million “as part of the privatization of DCF funds.”
The ethics panel, made up of a dozen judges and lawyers from around the state, said judges should not serve on the board of a managing entity because it is “in essence a governing entity” – an inappropriate place for a member of the judicial branch.
Oversight of government spending “is a clear responsibility of the executive branch, no different than the operations of the police and fire departments,” the opinion says.
Judges Leifman and Cohen acknowledged that their board service may require them to vote on a contract or payout – but it is unusual.
“Rarely or never do we vote on money going to a particular provider,” said Leifman. “Bids are put out, people bid and there’s a point (ranking) system. There are committees that none of us board members sit on that decides who gets what.”
Leifman acknowledged that the board influences contracting indirectly through its personnel and policy decisions.
Relationships with private companies also can lead to conflicts, especially if the managing entity “is viewed as a conduit or agent for (a) vendor,” the opinion says.
It cites Canon 2(b) of the Code of Judicial Conduct: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”
That was a problem for the judges on the board of the Broward Behavioral Health Coalition, which is chaired by former DCF Secretary Bob Butterworth.
The names and titles of three of the judges were used in bid documents submitted to DCF last winter by Butterworth. Records show their presence on Broward Behavioral’s board impressed DCF negotiators.
Broward Behavioral signed a $44.8 million-a-year contract with DCF effective Nov. 1. The contract ends June 30, 2016.
Miami-Dade’s South Florida Behavioral Health Network became a DCF managing entity two years ago, with Leifman as chair.
Unlike in Broward, there was no bidding process when the Health Network got the contract “so there was no issue about someone using the prestige of the office to become a managing entity,” Leifman said.
Further, said Leifman, the June ethics opinion “flies in the face” of previous opinions that allow judges to serve on boards that have an impact on the administration of justice.
Leifman and Cohen, judges since the mid-1990s, will consider their options after they get their “second opinion.” Leifman said that could include asking the Supreme Court itself for its opinion.
Said Cohen, “We’re not interested in corralling money for treatment. We’re just interested in having a system that really serves the public…but without our expertise, it won’t be as good as it is now.”