County Attorney's Response to the Clerk's Non-Payment of a BCC Approved Expenditure.

This item should have been paid three months ago....Why wasn't it?

I wrote extensively last week about what I felt was an unnecessary, unprofessional withholding of payment by the clerk's office of a duly approved and voted-upon item by the BCC.  The County Attorney has now sent the below response to the Clerk and her attorney to address this failure to make the payment.  Hopefully, payment will be made without ANY further delay, as it should have all along....From the email:

"First, let me express how extremely disappointed I am that you did not extend the courtesy at the earliest opportunity to advise of your concerns with this expenditure relating to Mr. Selover’s attorney’s fees and administrative fine.  As you know, the Board voted to authorize this expenditure at its October 6, 2022 meeting. Since then, more than three months have passed, and until now, you have not contacted me regarding this matter.

 Pursuant to Fla. Stat. §125.17, the Clerk shall make payments as directed by the Board of County Commissioners.  The Board is the elected legislative body that determines what expenses serve a public purpose and, unless illegal, those payments shall be timely made.  Under home rule authority, it is not necessary to demonstrate specific statutory authorization to make payment; instead, upon legislative authorization, payment shall be made unless illegal.  While you have provided statutory authority for payment of public officer and employee attorney’s fees, that authority is clearly not preemptive or exhaustive as illustrated by the common law theories regarding those expenses.

 There is no authority of which I am aware finding the payment of attorney’s fees or a fine illegal or inappropriate.  To the contrary, there is a strong public policy in favor of financially supporting public sector employees who become engaged in legal jeopardy arising out of their public sector employment.  To not defend such employees would discourage public employment as such employees are often asked to perform duties that are subject to legal challenges for various reasons.

 Mr. Selover’s attorney’s fees and the fine at issue were associated with an administrative action, rather than a criminal proceeding, that was directly related to his employment with the County.  The settlement agreement made no finding of grossly negligent conduct, bad faith, malicious purpose, or willful and wanton disregard of human safety.  Moreover, the settlement was entered into for the purpose of effecting an expeditious resolution rather than incurring the costs of a lengthy proceeding. 

To require a public employee or former employee to undergo an evidentiary hearing to avoid a fine instead of entering into a settlement agreement as a condition for authorizing payment is contrary to the public policy and would, undoubtedly, result in unnecessary expense.  It is also relevant to note, on occasion, the County must pay fines or penalties assessed against the County, whether arising out of the actions of its employees or otherwise.  Thus, assuming proper legislative action, it stands to reason that public funds may be used to pay fines assessed against a public employee when those fines arose out of his public employment.

 Additionally, although you have not communicated any concerns, it is my understanding the Clerk has not yet processed payment of Kate Kenney’s attorney’s fees, which the Board voted to authorize on  October 20, 2022.  I assume the issue of expenditures for fees or other expenses incurred by Public Safety employees was the subject of Ms. Childers discussion with the JLAC auditors after our meeting on Friday afternoon.  If so, I point out that only the elected legislative body can make a legislative determination as to what serves a public purpose.  That said, if the auditors provided specific advice on this issue then it should be shared between our agencies in the unified effort to perform and accomplish the public’s business. 

 Thus, I respectfully request the payment authorized by the Board on October 6 be processed as expeditiously as possible."

 

The Process Works

ECAT Employee and Union President Michael Lowery's termination has been overturned by an arbitratror.

The process works.

It isn't always pretty, it certainly isn't perfect, and it definitely isn't timely--- but it works.

The process of employee discipline, together with rules, ordinances, state and federal law-- combined with processes and procedures outlined in collective bargaining agreements for covered employees to appeal such discipline---- can all blend together and become opaque and circuitous.

Case in point:  Mike Lowery.

He was terminated by administration many, many months ago and he has fought this termination ever since.  Through various stages of appeals--he has stayed the course.

Now--whether or not we believe he was right or wrong--the arbitrator has spoken--and he will be reinstated.

From an evening email received by the board yesterday:

Commissioners,

 Please be aware the Arbitrator in the Lowery matter concluded there was just cause to discipline, but due to the lack of previous/progressive discipline, the termination was reduced to a 3-day suspension without pay.  Lowery must be reinstated and made whole for lost wages/benefits.  The Arbitrator will retain jurisdiction for 60 days for implementation of the remedy.

 Current ECAT management and HR are aware.  Please don’t reply all.

 Alison 

Fascinating View Inside Insurance Company Lawyer's Legal Strategy for their "Client" in the Selover Suit

Ever wonder how an insurance company's lawyer, attempting to minimize her client's exposure, would advise a County that was exercising said insurance company's policy?  Read this post and attached document and you will know.  And it's fascinating. 

Although it appears this document (memo) from the County's Insurance Comapany's Law Firm was sent to our County Attorney's office on January 27th---I just got a copy of it late yesterday afternoon.  It is a detailed, behind the scenes legal analysis of the case against the county brought by Matt Selover for multiple egregious violations of his due process rights and the shameful way he was treated. This is the kind of document the public rarely gets to see, however because we are a public entity subject to the open records laws and because the litigation in this case is concluded---it now becomes a public record and open for release.  Heck, I never even knew this document existed I only was made aware of it by a source unaffiliated with the county who actually called me and asked me "What I thought about the memo?"

Well, I didn't, because I hadn't, because I'd not seen it.  

But apparently others had seen it -------and this was probably the genesis of some late night calls between our former HR director and a bean-counter insurance bureaucrat last month.... oh well.

So, now being aware of its existence--I called the county attorney late yesterday afternoon and got it in 5 minutes flat.  And I spent hours last night reading it.  

But why was this memo never shared with myself and my counterparts at our June shade session, though?  Why were some staffers and apparently at least one other commissioner provided this document---but not the rest of us?  Who leaked this memo unlawfully to outside entities before the lawsuit was settled and this document was actually subject to release?

I will get answers to these questions, I have already asked.  I do have idea, though.  And thankfully, that individual is no longer employed with the county.  Let's put it that way.

Meanwhile-this document will make it's way to the written press very soon--- and I am fairly certain portions and snippets will be cut and pasted into an article that will purport to make me the "bad guy" of this case.  "That guy Bergosh supported Selover and would not go along with our defense strategy!!" will be the flavor.

So be it.  

The facts are clear, though: we wronged this first responder, disciplined him inappropriately, denied him due process, retaliated against him after he filed a harrassment complaint against his medical director, bungled that complaint and subsequently damaged him emotionally and physically--all the while stomping all over his rights and abandoning county policy and past practice.  That's why we settled with him, and the insurance company (not Escambia taxpayers) paid him a $200,000.00 settlement. 

Here are some "low"lights from this insurance company lawyer's memo--illustrating just how weak her case was and why:

"Critically, one of our biggest weaknesses is the fact that between April 23, 2019 and May 1, 2019, there is no documentation whatsoever supporting the Board's alleged decision to 1) restrict Selover's clinical privileges and 2) that Dr. Edler decided to report Selover to the-Department of Health."

"After he [Selover] filed the complaint, he testified that he worked without any issue for 22 or 23 days until he was advised his clinical privileges were restricted on May 15, 2019. He testified John Dosh and Leon Salter advised him that Dr. Edler restricted his job duties on May 13, 2019. Notably, as noted above, this is a significant weakness in our case as this occurred over three weeks after the QA/QI meeting."

"Dr. Edler told the [April 23, 2019 QA/QI] board to write up their thoughts and she would decide what to do. He [William Hopkins] recalls her telling him to write up the meeting and their observations, but it seems like they did not decide what actions to take regarding Selover at the meeting. They did not discuss reprimand or about limiting his ability to practice or do certain procedures.   They also did not talk about reporting him to the FDOH." 

"We believe Plaintiff may be able to establish that Plaintiff through high-ranking officials­ ratified the alleged due process violations allegedly committed by Dr. Edler because it did not reverse her actions despite having reason to do so based on Peppler's legal memorandum and Spainhower's report. Accordingly, should this court determine that Selover's due process rights were violated, the County may be subject to municipal liabili ty."

"..there is a chance that the Court will find that his [Selover's] position change from paramedic to EMT-regardless of no pay change-constituted disciplinary action or adverse employment action since be was perceived by his peers to only be an EMT, his ability to work overtime as a paramedic was limited, and his pay was essentially reduced. We have highlighted in depositions that the policies and procedures define "demotion" as having your pay rate decreased-which did not happen to Selover. However, Bergosh's deposition highlights the

Inside the Sausage Grinder--Part I

 

Documents that will be imminently released pertaining to a recent legal settlement with a former employee illustrate how contentious some personnel issues can become when board policy is not followed with fidelity

 

A large batch of documents became public late this afternoon.

They are related to a recent settlement that the county made with a former employee, a former paramedic in our EMS department.

I took an interest in this individual's circumstance when he reached out to me in frustration after his due process was violated an he was not treated fairly by staff.  He was left in limbo for months and months on end---before he ever even contacted me.

It was horrific, how badly this employee was treated.  I was disgusted when I peeled the onion and figured out just how badly this individual was treated.  So I took up his cause---and tried desperately to help him get resolution and salvage his career here in Escambia County.

But nobody in administration did the right thing.  One administrator that was leaving didn't have time to close the loop.  The incoming administrator did not fix the issue, saying she was unaware of it.  Once I spoke to her and brought it to her attention--she failed to fix it.  Instead, she doubled down on the bad and incorrect advice of her newly hired HR director and her "mentor" a former state representative who she brought in to "consult."  The new county leadership group failed to fix the issue, and allowed this employee to twist in the wind.  To the point he made a tough decision in absolute anger and frustration.

 He left the county and rebuilt his career in another location.  

But he never wanted it to come to this, and he certainly didn't want to be treated the way he was treated.  The county dropped the ball, staff turnovers exacerbated this situation, and NOBODY wanted to step up and fix the issue.  It was infuriating.

This employee suffered economic losses, and an attorney took the case on contingency.  It was an open and shut case--no wonder the attorney took the case.  Opinions have varied, and some don't see the issues as they unfolded.  But we have now gone through a couple of years and lots of facts and shade meetings since that happened.

Fast forward a couple of years, and we have now settled.  $200K and we're LUCKY it was not more--that's how bad our position was--thanks to staff inattention and feckless handling of the issue.  

I heard, just  today,  that the case is now officially closed.

So several documents will be coming out.  There will be the transcripts of three BCC "shade" litigation