Bryan A.

Lober, Commissioner, District 2 Telephone: (321) 454-6601

2575 N. Courtenay Pkwy, Suite 200 Fax: (321) 454-6602
Merritt Island, FL 32953 www.brevardfl.gov
D2.commissioner@brevardfl.gov

* REVISED *

August 19, 2020 Via Electronic Mail

Nicholas Romanello
Health First
Senior Vice President & Chief Legal Officer

Re: Letter insinuating impropriety

Dear Mr. Romanello:

Please be advised that I am writing to you neither in my official capacity as Chair of the Brevard
County Board of County Commissioners (hereinafter “BoCC”) nor as an attorney (except where
specifically indicated) licensed to practice in multiple federal and state courts (including all those
located within a wide radius of Brevard County), but rather in my capacity as an individual duly
elected County Commissioner. As such, the BoCC may agree with all, some, or none of the content
of this letter.

I am in receipt of your email sent this morning to County Attorney Eden Bentley regarding my
communications with Steve Crisafulli regarding CARES Act allocation. Your letter is replete with
specious claims, the most egregious of which I intend to address herein.

You state, in pertinent part, that my “emails of August 7 and 13 appear, at best a misuse of the
Chair’s public position or prohibited exaction and, at worst, suggest an unlawful scheme to
contravene the intended purpose of Federal CARES Act funding.”

While you are correct in that I hold a position of public trust, the remainder of your claim is both
wholly without citation to any authority whatsoever and contrary to common sense.

In my position of public trust, I owe a duty to ensure the most efficacious use of all available
funding to my constituents and I, as a matter of routine, work diligently to ensure that all
meaningful opportunities to leverage grant funding are explored. To suggest that my having
requested a wholly lawful action which would serve to meaningfully enhance the community is
somehow contrary to my obligations is without merit.

One of the wonderful things about living in a nation which cherishes freedom is that, by and
large, individuals are free to do whatever they please absent a specific legal prohibition. In this
case, a large corporation seeking an unearned windfall being upset that conditions may be attached

District 2 Includes
Cocoa ⬧ Kennedy Space Center ⬧ Merritt Island ⬧ Port Canaveral ⬧ Cape Canaveral ⬧ Avon by the Sea ⬧ Cocoa Beach ⬧ Snug Harbor ⬧ Patrick AFB ⬧
Rockledge
to that unearned windfall does not, in and of itself, render my actions either unethical or, as
baselessly suggested, illegal.

I am proud when criticism comes as a result of my doing what is demonstrably best for the
community.

The emails you attached to your message to Ms. Bentley were sent from my official government
account and are unquestionably public record. They were intentionally memorialized and sent in
this fashion as there was no reason for me to conceal my readiness to upset what may be perceived
as the status quo when so doing is beneficial to the community.

The implication that there could be any sort of behind-the-scenes approval to allocate the over
$7M requested by Health First is ludicrous.

As you, Mr. Crisafulli, Ms. Bentley, and I are certainly well aware, any allocation of CARES
Act funding to Health First, on the part of Brevard County, would unquestionably have to be
reduced to writing and go through an exhaustive review and approval process by both the County
Attorney’s Office as well as Health First’s counsel. Were anything proposed be deemed
impermissible, I am confident that any such concern would either have arisen by then or have been
raised at that time.

Prior to this stage of the approval process – the stage in which our respective legal departments
would review pertinent documents - any proposed allocation would have to have been approved
by a majority of those Commissioners voting at a duly noticed County Commission meeting in
which public comment must be permitted.

As clearly indicated in my emails to Mr. Crisafulli, I do not have unilateral authority to allocate
any of the CARES Act funds. This was the very reason that I volunteered my now-proven-correct
hypothesis that Commissioner Isnardi would be prohibited from voting, on this matter, and why I
referenced one or more statements made by Commissioner Tobia which serve to suggest his likely
vote in this matter.

Please note that I hereby withdraw my request that Health First match any portion of CARES
Act allocation for the benefit of the local community. To alleviate any concern, Health First will
be evaluated without regard to my initial proposal.

With respect to the July 17 Facebook post referenced, I challenge you to articulate which
particular comments were, as you put it, “outlandish.” I stand behind my comments “that Brevard
County residents will get sick and die due to the actions of Health First.” Your organization has
silenced those most qualified to comment on matters of a once-in-a-lifetime pandemic at a time
when the community needed you most. In so doing, you have not only failed the community but
also, upon information and belief, negatively impacted local infection numbers.

You utterly fail to articulate in what way(s) my “actions demonstrate a bias and prejudice against
the more than 9,000 Health First associates…” My fact-based criticism of Health First was strictly
limited to those very few administrators at Health First responsible for prohibiting the large

Page 2 of 5
number of Health First clinicians, whose opinions I hold tremendously valuable, from directly
sharing their expertise with the community.

If I displayed any degree of “bias and prejudice against the more than 9,000 Health First
associates,” it pales to the bias and prejudice shown by Health First’s administration to its own
clinicians. Health First’s administration’s unambiguous desire to remain politically neutral has
jeopardized the community’s health and, upon information and belief, negatively impacted it.

I evaluate Health First upon the same criteria I evaluate all other hospital groups seeking CARES
Act funding: the potential and likely impact on the local community. As I articulated in a prior
Commission meeting, I am disinclined to support awarding Steward any CARES Act funding
because it would be highly unlikely to benefit the local community.

It is my understanding that I am required to vote on all matters in which I do not have a legally
recognized conflict. Absent a legally recognized voting conflict, I have no right to abstain from
voting on any matter which comes before the Brevard County Board of County Commissioners. §
286.012, Fla. Stat., is controlling. In pertinent part, § 286.012 reads:

A member of a state, county, or municipal governmental board, commission, or agency who is

present at a meeting of any such body at which an official decision, ruling, or other official act
is to be taken or adopted may not abstain from voting in regard to any such decision, ruling,
or act; and a vote shall be recorded or counted for each such member present, unless, with
respect to any such member, there is, or appears to be, a possible conflict of interest under s.
112.311, s. 112.313, s. 112.3143, or additional or more stringent standards of conduct, if any,
adopted pursuant to s. 112.326 (emphasis added).

Upon information and belief, Brevard County has not adopted “more stringent standards of
conduct.”

Nothing prohibits me from formulating an opinion of any particular entity based upon my
observations of that entity’s actions and/or inactions coupled with my lawful and proper dealings
with that entity. You have not so much as alleged that I hold a preexisting bias against Health First
based upon dealings with Health First outside of the scope of my public service. My present
opinions regarding Health First are not based upon any such preconception.

One of the requests contained within your letter is that I, “abstain or recuse [myself] on all votes
on or related to Federal CARES Act Funding to healthcare related companies.” Even had you been
able to evidence a legally recognized conflict precluding me from voting on matters pertaining to
Health First, this request would likely have exceeded the scope of any resulting voting conflict.

Nothing in relation to this matter would inure to my special private gain or loss. As such,
regardless of my personal desires, I cannot honor that request.

Your second request is that I “abstain or recuse [myself] on all votes relating to Health First and
its subsidiaries for the duration of service on the Brevard Board of County Commission.” Even
had you been able to substantiate a legally recognized conflict precluding me from voting on
CARES Act allocation, this request would have been overbroad.

Page 3 of 5
 Nothing in relation to this matter would inure to my special private gain or loss. As there exists
no legally recognized conflict of interest, I cannot honor your second request. Absent a lawful
basis for me to abstain from voting, you have requested that I violate § 286.012, Fla. Stat. While
you vaguely assert the possibility of some obscure illegality on my part (“… to contravene the
intended purpose…”), there is no question whatsoever that you have requested that I violate state
law. As a fellow member of the Florida Bar, I find this highly disconcerting.

Florida Bar Rule of Professional Conduct 4-8.4(a) prohibits attorneys from violating the Rules
of Professional Conduct or knowingly assisting another to do so. Rule 4-8.4(d) prohibits attorneys
from engaging in conduct that is prejudicial to the administration of justice. While, I have never
had occasion to review opinions or case law on this Rule, I am concerned that your request may
be violative of it.

I have never grieved a colleague to the Florida Bar but I understand that there exists a duty to
report professional misconduct under Rule 4-8.3, which reads:

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional
Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as
a lawyer in other respects must inform the appropriate professional authority.

Irrespective of Health First’s past, present, or future stance in the instant matter and/or any other
matter(s), I intend to request that the County Attorney’s Office research whether reporting is
necessary in this instance. If reporting is merely permissible, I intend to refrain from reporting
your conduct as I genuinely do not wish to cause any colleague undue aggravation for what may
be due to lack of knowledge as opposed to malice on your part.

It would appear you simply do not wish me to vote on matters in which your hospital group could
be favored over the public interest I have a duty to uphold and defend. As you know, I entirely
self-funded my campaign, having refused to accept campaign contributions. I owe no favors to
anyone and all those who have come before the County Commission have been afforded the
opportunity to demonstrate the merits of their respective proposals. Literally gifting Health First
millions of taxpayer dollars entails an opportunity cost. My belief that those funds might be put to
better use in taking measures to ensure residents do not go malnourished and are productively
reemployed does not, in any way, mean that I hold a prohibited bias or prejudice against Health
First. I was elected to make such decisions and I will not be bullied or swayed into doing otherwise.

I note that your closing sentence reads, “[t]he wellness of the residents of Brevard County is our
priority, and we believe it should be the Board of County Commissioners’ as well.” The meritless
insinuation that were the Board of County Commissioners not to unconditionally grant millions of
dollars to a large corporation in no risk of closing its doors or degrading services strikes me as
hypocritical given my aforesaid criticism of Health First’s restrictions on its clinicians which are
injurious to public health. Health First has publicly maintained that it has no staffing concerns
throughout this crisis. Now that millions of dollars may be available, have the facts changed to suit
the opportunity?

Framing me as the villain for having attempted to negotiate a benefit for the local community
(with particular emphasis on the Veterans Memorial Center) so twists all context as to amount to

Page 4 of 5
an extreme mischaracterization. One might think I was attempting to line my own pocket and/or
those of a crony given your outrageous suggestion of an “unlawful scheme.” Please be advised
that, while I am disappointed with the disingenuousness of your letter, I do not intend to hold it
against Health First in any manner.

I understand, from staff, that Health First will be asking for County Commission approval of an
“unprecedented” number of waivers for their project on the north side of SR-520. At present, I
have not yet heard any particular request, on that front, I am unwilling to consider.

As a trial lawyer, I am perfectly amenable to setting aside past disagreements and allowing a
clean slate moving forward. I similarly encourage you not to dwell on past disagreements and to
move forward for the benefit of the community in which we both reside and work.

Truly,

Bryan A. Lober

cc: County Manager Frank Abbate

Kimberly Rezanka, Esq.
Steve Crisafulli
Stephen Lacey, Esq.
Patricia Pruitt
Jessica Andre
Christina Goins
Gobivenkata Balaji, M.D.

Page 5 of 5
-
Health
irst

August 19, 2020 Via Electronic Mail and

First Class Mail
Eden Bentley
Brevard County Attorney
Brevard County Board of County Commissioners
2725 Judge Fran Jamieson Way
Viera, Florida 32940

Dear Ms. Bentley:

Recently Health First received an email from the County Commission Chair dated August 7 (a copy of which is enclosed
for your review) which demanded "Health First match no less than 80% of any and all CARES Act funding allocated to
them, by the County, and earmark this match toward the improvement of public areas surrounding their facilities, including
no less than $1.25M allocated to the public park adjacent to the Veteran's Memorial Center to enable construction of
walkways, fountains, installation of electrical and/or plumbing conduit, signage, and/or to offset the cost of a planned
amphitheater." The August 7 email continues by, in part, warning, "Please note that l am not terribly interested in
negotiating these figures as they were not provided with the idea of meeting in the middle or negotiating downward." While
only the sender can speak to the intentions, the August 7 email appears to be a quid-pro-quo demand and the reference to
"negotiating" a not so veiled threat that Health First must comply with the demands or be penalized by not receiving any
Federal CARES Act funding from Brevard County to support its efforts in the fight against COVID-19.

A second August 7 email to Health First (a copy of which is enclosed for your review) boasts "I may not be very good at
math but 20% of something to which there is no entitlement is far better than 0% of that same figure." Additionally, on
August 13 Health First received an email (a copy of which is enclosed for your review) that reads as an overt threat of
increasing the required "match" should Health First not agree to the demand, "As a courtesy reminder, I maintain my request
for Hf's acceptance of my proposal on or before Friday, August 21. If HF does not accept on or before that date, it is
exceedingly likely that the terms offered to them will no longer remain nearly as favorable as those initially communicated
( e.g., instead of 80/20, it may become 90/10)."

Taken together, the emails of August 7 and 13 appear, at best, as a misuse of the Chair's public position or prohibited
exaction and, at worst, suggest an unlawful scheme to contravene the intended purpose of Federal CARES Act funding. As
such, Health First cannot yield to the demands. In these challenging times, Health First leadership and our family of health
care providers will not be distracted from our mission of caring for our customers, especia!Jy at this time when our
community is counting on us. Even if it means doing without much needed Federal CARES Act relief.

Pagel of2
Finally, Health First is aware of comments posted on the Brevard County Commissioners District 2 Facebook page on July
17 that vilifies the organization (a copy of which is enclosed for your review). While subsequently removed, these
comments made outlandish allegations implying that Brevard County residents will get sick and die due to the actions of
Health First.

While Health First respects the service of the Commission Chair, we believe that the demands coupled with the public
disparagements of the County ' s most comprehensive wellness provider is the type of conduct that erodes confidence in local
government. Moreover, the actions demonstrate a bias and prejudice against the more than 9,000 Health First associates
who work to make up Central Florida's only fully integrated delivery network. For these reasons, Health First requests:

I. That the Commission Chair abstain or recuse himself on all votes on or related to Federal CARES Act Funding to
healthcare related companies, and

2. That the Commission Chair abstain or recuse himself on all votes relating to Health First and its subsidiaries for the
duration of service on the Brevard Board of County Commission.

The wellness of the residents of Brevard County is our priority, and we believe it should be the Board of County
Commissioners ' as well.

icholas Romanello
Health First
Senior Vice President I Chief Legal Officer

cc: Commissioner Rita Pritchett

Commissioner Bryan Lober
Commissioner John Tobia
Commissioner Curt Smith
Commissioner Kristine Isnardi
Frank Abate, County Manager (and Joy Roth)
Kimberly Rezanka, Esq.

Page 2 of2
8/19/2020 Mail - Lober, Bryan - Outlook

Re: Health First

Steve Crisafulli <steve@stevecrisafulli.com>
Thu 8/13/2020 8:43 PM
To: Lober, Bryan <Bryan.Lober@brevardfl.gov>

[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
content is safe.

Commissioner Lober,

Thank you for passing this along.  I will be sure to forward it to the Health First General Counsel.

Steve 

On Aug 13, 2020, at 7:40 PM, Lober, Bryan <Bryan.Lober@brevardfl.gov> wrote:

Steve,

I hope you are doing well.

As you may recall, I previously men oned, in my below email of August 7, in per nent part,
"Commissioner Isnardi will never realis cally be allowed to vote on alloca ons to Health
First."

I wanted to follow up as I have now received a copy of the Commission on Ethics' August 11
wri en opinion regarding whether Commissioner Isnardi is en tled to vote on alloca ng
CARES Act funding to HF. It appears that the Commisison on Ethics would agree.

Without going through 7 pages of background and analysis, skipping to the last paragraph,
the opinion reads, in per nent part, "[A]ny votes/measures involving the BOCC's alloca on
of CARES Act funds to Health First, Inc., would inure to the special private gain or loss of the
parent organiza on of [Commissioner Isnardi's] employer, HFMG, and thus, give rise to a
vo ng conflict of interest requiring Commissioner Isnardi's absten on from vo ng and
adherence to the addi onal procedures set forth in the memorandum of vo ng
conflict..." For HF's perusal, I'm a aching an unredacted and complete copy of the
referenced Commission on Ethics opinion.

As a courtesy reminder, I maintain my request for HF's acceptance of my proposal on or

before Friday, August 21. If HF does not accept on or before that date, it is exceedingly likely
that the terms offered to them will no longer remain nearly as favorable as those ini ally
communicated (e.g., instead of 80/20, it may become 90/10).

https://outlook.office365.com/mail/search/id/AAQkADQ2OGRiZTgyLWUxMDUtNGU0Yi05NDJlLWYwZDYwNjdkZDBjOAAQAH10%2FyKx1EytpM%2B… 1/5
8/19/2020 Mail - Lober, Bryan - Outlook

Kind regards,

Bryan

From: Steve Crisafulli <steve@stevecrisafulli.com>

Sent: Friday, August 7, 2020 9:19 PM
To: Lober, Bryan <Bryan.Lober@brevardfl.gov>
Subject: Re: Health First
 

[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender
and know the content is safe.

Commissioner Lober,

Thank you for your response. 

I will be sure to forward this information along should I get asked.

Have a good weekend!

Steve 

On Aug 7, 2020, at 5:11 PM, Lober, Bryan <Bryan.Lober@brevardfl.gov>

wrote:

Steve,

Thanks for the extremely prompt reply; I appreciate that we are always able to
reach one another quickly.

To answer your first ques on, I am working on hospital systems one at a me; I
have not yet looked, in depth, at Parrish or Steward to consider their individual
circumstances. I have some ini al thoughts regarding their requested
alloca ons but my thoughts, on that ma er, are far from finalized.

I may end up reques ng the same percentage split of either or both such
systems assuming they merit receiving CARES Act funding from us, which they
may or may not. Remember that the BoCC could wholly deny requested funding
to one or both hospitals (or any applicant) if the funds could be put to be er
use elsewhere.

https://outlook.office365.com/mail/search/id/AAQkADQ2OGRiZTgyLWUxMDUtNGU0Yi05NDJlLWYwZDYwNjdkZDBjOAAQAH10%2FyKx1EytpM%2B… 2/5
8/19/2020 Mail - Lober, Bryan - Outlook

Alterna vely, if one or both demonstrate a genuine need, the BoCC could grant
the en rety of their requests. The BoCC could also peg the rela ve percentage
we request be matched on some objec ve factor - perhaps on the highest
compensated local C-level execu ve's salary (or the average of all local C-level
execu ves' salaries) so as to grant a greater percentage of qualifying requested funds
to those with a greater apparent need (as evidenced, in part, by lower admin pay)
and to ensure that we s ck up for the "li le guys" instead of unjustly enriching those
who need it least. This is all, of course, specula ve as I have not yet considered
Parrish or Steward's requests to the same extent I have Health First's request. In fact,
Steward's request was not received as mely as that of Parrish or Health First, so I
have not yet had enough me to make a determina on as there has simply not yet
been adequate opportunity to perform anything approaching necessary due
diligence.

Please understand, though, that the VMC park being improved

dispropor onately benefits the area surrounding the new Health First site and
it would not be reasonable to require improvement of that par cular park from
hospital systems with zero presence anywhere near it - as opposed to Health
First - which will have a massive physical presence essen ally across the street.

I would urge Health First to understand that this proposal is being offered to
benefit the local community. I have zero direct or indirect personal financial
incen ve regardless of how alloca on of CARES Act funding is made. I do not
intend to apply for any funding regardless of whether my business qualifies.

If I can help both Health First and the local community, wonderful. If I cannot,
the money can simply be given to deserving individuals and small businesses as
it appears to have been contemplated and intended by those who put this
program in place.

Commissioner Tobia and I have both been very vocal in our opinion that no one
is en tled to CARES Act funding. Commissioner Tobia has been vocally in favor,
as recently as last night, of suppor ng the li le guys, the "have nots" as he calls
them. As Commissioner Isnardi will never realis cally be allowed to vote on
alloca ons to Health First, you would need to have Commissioner Tobia change
his posi on in order to have any chance of ge ng something approved which
Health First does not broker, with me, in advance. This assumes that Health
First takes for granted the votes of Commissioners Pritche and Smith. Frankly,
it's not crystal clear to me that both of those votes are etched in stone either
way.

I may not be very good at math but 20% of something to which there is no
en tlement is far be er than 0% of that same figure. Moreover, I have no
qualms giving Health First tremendous posi ve publicity for their contribu ons
to the VMC park. I would support naming the bandshell a er them and
providing addi onal recogni on. Once COVID subsides, we can put on an event
where they can shake hands and kiss babies. They can be made into the heroes
who went above and beyond. They also stand to gain a 7-digit figure in
exchange for having an employee or two spend a few hours comple ng
paperwork. That sounds like a no-brainer decision to me.

https://outlook.office365.com/mail/search/id/AAQkADQ2OGRiZTgyLWUxMDUtNGU0Yi05NDJlLWYwZDYwNjdkZDBjOAAQAH10%2FyKx1EytpM%2B… 3/5
8/19/2020 Mail - Lober, Bryan - Outlook

I'll happily work with you and/or Health First to tweak the par culars of how
and where the match may be spent so long as the community benefits at the
end of the day.

Truly,

Bryan

From: Steve Crisafulli <steve@stevecrisafulli.com>

Sent: Friday, August 7, 2020 3:36 PM
To: Lober, Bryan <Bryan.Lober@brevardfl.gov>
Subject: Re: Health First
 

[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize

the sender and know the content is safe.

Commissioner Lober,

Good afternoon!

I have conveyed your email as requested to Health First.  I am not sure if they
will communicate through me back to you or directly back to you through
your office.  However if I am asked... is this something that is being asked of
all of the healthcare providers that are looking for reimbursements from their
expenses associated with COVID 19 through the Cares Act Funding, or just
being asked of Health First?

Have a great weekend!

Steve

On Fri, Aug 7, 2020 at 2:47 PM Lober, Bryan <Bryan.Lober@brevardfl.gov>

wrote:

Steve,

I’m reaching out to ask that you convey my request that Health First
match no less than 80% of any and all CARES Act funding allocated
to them, by the County, and earmark this match toward the
improvement of public areas surrounding their facilities, including no
less than $1.25M allocated to the public park adjacent to the Veteran’s
Memorial Center to enable construction of walkways, fountains,
installation of electrical and/or plumbing conduit, signage, and/or to

https://outlook.office365.com/mail/search/id/AAQkADQ2OGRiZTgyLWUxMDUtNGU0Yi05NDJlLWYwZDYwNjdkZDBjOAAQAH10%2FyKx1EytpM%2B… 4/5
8/19/2020 Mail - Lober, Bryan - Outlook

offset the cost of a planned amphitheater. It is imperative that I know

Health First’s position on this within the next two weeks at the latest.

Please note that I am not terribly interested in negotiating these figures

as they were not provided with the idea of meeting in the middle or
negotiating downward.

Truly,

Bryan A. Lober

County Commissioner, District 2 & Chair

Brevard County Board of County Commissioners

Merritt Island Service Complex

2575 North Courtenay Parkway Suite 200

Merritt Island, Florida 32953

Ph: (321) 454-6601

Fax: (321) 454-6602

E-Mail: D2.Commissioner@BrevardFL.gov

This message may have been sent on a mobile device. Please forgive
any typos.

Under Florida law, all correspondence sent to this office, which is not
exempt or confidential pursuant to Chapter 119 of the Florida Statutes,
is public record. If you do not want the public record contents of your
e-mail or your e-mail address to be provided to the public in response
to a public records request, please do not send electronic mail to this
entity. Instead, contact this office by phone or in writing.

"Under Florida Law, email addresses are Public Records. If you do not want
your e-mail address released in response to public record requests, do not
send electronic mail to this entity. Instead, contact this office by phone or in
writing."

<Isnardi.Bentley.EthicsAnalysisCARESAct.pdf>

https://outlook.office365.com/mail/search/id/AAQkADQ2OGRiZTgyLWUxMDUtNGU0Yi05NDJlLWYwZDYwNjdkZDBjOAAQAH10%2FyKx1EytpM%2B… 5/5
 Daniel Brady, Ph.D. C. Christopher Anderson, III
Chair Executive Director/
F. Shields McManus General Counsel
Vice Chair
Antonio Carvajal Kerrie J. Stillman
Deputy Executive Director
Don Gaetz
Glenton "Glen" Gilzean, Jr. State of Florida
COMMISSION ON ETHICS (850) 488-7864 Phone
John Grant P.O. Drawer 15709 (850) 488-3077 (FAX)
JoAnne Leznoff Tallahassee, Florida 32317-5709 www.ethics.state.fl.us
William "Willie" N. Meggs
325 John Knox Road
Kimberly Bonder Rezanka Building E, Suite 200
Tallahassee, Florida 32303

"A Public Office is a Public Trust"

______________________________________________________________________

August 11, 2020

Ms. Eden Bentley

Brevard County Attorney
Eden.Bentley@brevardfl.gov

Re: Your inquiry received on July 16, 2020

Dear Ms. Bentley:

This letter is the response to your above-referenced inquiry concerning conflicts of

interest and/or voting conflicts, if any, arising under the Code of Ethics for Public Officers and
Employees (Code of Ethics) regarding a possible future Brevard County Commission vote on the
distribution of CARES Act funding to a local health care system which employs Commissioner
Kristine Isnardi, a member of the Brevard County Board of County Commissioners (BOCC). In
your letter of inquiry and additional materials provided, you state that you are requesting this
analysis as the Brevard County Attorney and with the knowledge and acquiescence of
Commissioner Isnardi. You state that in her private capacity Commissioner Isnardi has been
employed as a nurse practitioner with Health First Medical Group, LLC (HFMG) since 2008. In
your initial letter of inquiry you stated that HMFG, Health First Physicians, Inc., and Health First
Medical Management, Inc., are taxable entities providing a system of primary care centers,
specialty, and ancillary services, as well as physician practice management services. However,
in response to a request for additional information you clarified that HFMG is a non-profit, tax
exempt organization under Section 501(c) of the Internal Revenue Code. You state that HFMG,
is owned, managed, and controlled by Health First, Inc., a non-profit holding company which has
Ms. Eden Bentley
August 11, 2020
Page 2

assets comprised of several affiliate/subsidiary companies that it controls via a multi-level

structure.1

You state that as a result of the ongoing global pandemic caused by Covid-19 Congress
has approved the CARES Act which in part allowed for funding for local governmental entities.
Brevard County was eligible for and received a total of $105 million dollars to be used to
provide financial assistance to businesses to cover expenses related to the local response to
Covid-19. You state that the BOCC has the authority and responsibility to distribute the funds in
accordance with the directives set forth in the CARES Act. In furtherance of this authority the
BOCC is assisted by the County Manager and County staff to develop and implement the criteria
for eligibility and the application process for the expenditure of CARES Act funds in accordance
with U.S. Treasury guidance. You relate that the BOCC is considering numerous programs and
requests for funding approval from business entities and citizens via the CARES Act. In
responses to a request for additional information you indicate that applicants approved for the
expenditure of CARES Act funds must execute a bilateral agreement with the BOCC wherein the
agency2 or entity attests that it has satisfied the eligibility criteria for the disbursement of CARES
Acts funds and that it will expend the funds in accordance with the CARES Act requirements,
the U.S. Treasury Guidance, and BOCC requirements.

You state that Health First, Inc., as a health care provider, has requested consideration by
the BOCC for financial assistance from the unallocated CARES Act funds. You relate that the
BOCC expects to vote on the allocation of funds for this purpose in the near future. You state
that to the best of your knowledge the specific Health First, Inc., entities that are expected to
request direct funding from the BOCC are Holmes Regional Medical Center, Inc., Palm Bay
Hospital, Viera Hospital, and Cape Canaveral Hospital, Inc. You state that there is no indication
that HFMG (the entity that employs Commissioner Isnardi) is requesting direct distribution of
CARES Act funding. Further, you state that Commissioner Isnardi and HFMG have confirmed
that Commissioner Isnardi's compensation is in no way tied to the distribution of CARES Act
funds. However, you relate that it is unknown whether the other affiliated (Health First, Inc.)
entities seeking distribution of CARES Act funds intend to later direct those funds to create a
financial benefit to HFMG.

1
The facts provided indicate that additional corporations owned and managed by Health First, Inc.,
include Holmes Regional Medical Center, Inc., Palm Bay Hospital, Viera Hospital, Cape
Canaveral Hospital, Inc., and HFMG.
2
You relate that to date the BOCC has approved the distribution of CARES Act funds to public
entities including municipalities and the Brevard County School Board which were required to
execute an "Interlocal Agreement" regarding CARES Acts funding. In the event that private
business entities, such as Health First, Inc., are approved for the distribution of CARES Act funds,
you state that a similar bilateral agreement or contract between the BOCC and the respective
business entity would be executed. An illustrative Interlocal Agreement provided in response to a
request for additional information provided in Section 7 that "[e]ither party to this Agreement, in
the event of any act of default by the other, shall have all remedies available to it under the laws
of the State of Florida."
Ms. Eden Bentley
August 11, 2020
Page 3

The portions of the Code of Ethics (Part III, Chapter 112, F.S.) most relevant to your
inquiry are Sections 112.313(7)(a)3and 112.3143(3)(a), Florida Statutes (F.S.), which provide:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. —

No public officer or employee of an agency shall have or hold any employment or
contractual relationship with any business entity or any agency which is subject to
the regulation of, or is doing business with, an agency of which he or she is an
officer or employee . . .; nor shall an officer or employee of an agency have or hold
any employment or contractual relationship that will create a continuing or
frequently recurring conflict between his or her private interests and the
performance of his or her public duties or that would impede the full and faithful
discharge of his or her public duties. [Section 112.313(7)(a), F.S.]

3
Section 112.313(3), Florida Statutes, which governs doing business with one's own agency, is
apparently inapplicable to the facts of your inquiry. Section 112.313(3), Florida Statutes, provides:

DOING BUSINESS WITH ONE'S AGENCY.—No employee of an agency

acting in his or her official capacity as a purchasing agent, or public officer acting
in his or her official capacity, shall either directly or indirectly purchase, rent, or
lease any realty, goods, or services for his or her own agency from any business
entity of which the officer or employee or the officer’s or employee’s spouse or
child is an officer, partner, director, or proprietor or in which such officer or
employee or the officer’s or employee’s spouse or child, or any combination of
them, has a material interest. Nor shall a public officer or employee, acting in a
private capacity, rent, lease, or sell any realty, goods, or services to the officer’s or
employee’s own agency, if he or she is a state officer or employee, or to any
political subdivision or any agency thereof, if he or she is serving as an officer or
employee of that political subdivision. The foregoing shall not apply to district
offices maintained by legislators when such offices are located in the legislator’s
place of business or when such offices are on property wholly or partially owned
by the legislator. This subsection shall not affect or be construed to prohibit
contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.

Neither portion of this statute apparently is applicable in the instant matter as there are no facts
present which indicate that Commissioner Isnardi or the BOCC is seeking to buy any realty, goods,
or services from any entity (including Health First, Inc., or its subsidiary business entities) for her
agency (the BOCC). Moreover, there are no facts present which indicate that Commissioner
Isnardi or her private employer, HFMG, is seeking to sell any realty, goods, or services to the
BOCC or to any political subdivision of the County. See CEO 07-11 and CEO 18-6.
Ms. Eden Bentley
August 11, 2020
Page 4

VOTING CONFLICTS. —No county, municipal, or other local public officer shall
vote in an official capacity upon any measure which would inure to his or her
special private gain or loss; which he or she knows would inure to the special
private gain or loss of any principal by whom he or she is retained or to the parent
organization or subsidiary of a corporate principal by which he or she is retained,
other than an agency as defined in s. 112.312(2); or which he or she knows would
inure to the special private gain or loss of a relative or business associate of the
public officer. Such public officer shall, prior to the vote being taken, publicly state
to the assembly the nature of the officer’s interest in the matter from which he or
she is abstaining from voting and, within 15 days after the vote occurs, disclose the
nature of his or her interest as a public record in a memorandum filed with the
person responsible for recording the minutes of the meeting, who shall incorporate
the memorandum in the minutes. [Section 112.3143(3)(a), F.S.]

Section 112.313(7)(a), F.S., has two clauses. Section 112.313(7)(a), F.S., prohibits a
public officer from having or holding employment or a contractual relationship with an agency
or business entity if the agency or entity is subject to the regulation of, or is doing business with,4
the public officer's agency; 5 and further prohibits employment or contractual relationships that
will create a continuing or frequently recurring conflict between the public officer or employee's
private interests and the performance of his or her public duties, or which would impede the full
and faithful discharge of his or her public duties.

In the instant matter, Health First, Inc., the holding company which owns, manages, and
controls HFMG, the business entity which employs Commissioner Isnardi, is seeking
consideration for the distribution of CARES Act funds from the BOCC, the agency upon which
Commissioner Isnardi serves as an elected public officer. Further, were the BOCC to determine
that Health First, Inc., is eligible for the allocation of CARES Act funds, the BOCC would
require that Health First, Inc., execute a bilateral contract with the BOCC to ensure that the
allocated funds are used in accordance with CARES Act requirements, U.S. Treasury Guidance,
and BOCC requirements. Thus, if the BOCC approves the allocation of CARES Act funds to
Health First, Inc., Commissioner Isnardi would have an employment relationship with a business
entity (HFMG), whose parent holding company is doing business with her agency, the BOCC.
Generally, the Commission has treated corporate subsidiaries as separate business entities in
applying the Code of Ethics. See, among many, CEO 85-31, CEO 86-12, and CEO 09-
2. However, in a limited number of circumstances involving holding companies, the Commission

4
The Commission has found that a business entity is "doing business with" an agency where the
parties have entered into a lease, contract, or other type of arrangement where one party would
have a cause of action against the other in the event of a breach or default. CEO 86-24, CEO 07-
11, CEO 11-14, CEO 11-15, CEO 12-15.
5
In advisory opinions the Commission has found that the agency of a county commissioner is the
county commission and the political subdivision that is a county includes all offices and agencies
of the county. See CEO 12-13 and CEO 19-10.
Ms. Eden Bentley
August 11, 2020
Page 5

has "pierced the corporate veil" and concluded that contracting with a holding company which
held the assets of a subsidiary corporation which was doing business with or regulated by the
public officer's agency could violate the first part of Section 112.313(7)(a). See CEO 79-16,
CEO 80-25, and CEO 91-24. Applying this rationale in the instant matter, were the BOCC to
approve the expenditure of CARES Act funds to Health First, Inc., and execute a contract
therewith, it would be doing business with the holding company that owns, manages, and
controls the business entity that employs of Commissioner Isnardi in her private capacity and
thus, seemingly would create an impermissible conflict of interest pursuant to the first, and
possibly second, clauses of Section 112.313(7)(a), F.S.

However, Section 112.313(15), F.S., contains an exemption to the conflict of interest

prohibitions contained in Section 112.313(7)(a), F.S. Section 112.313(15), F.S., provides:

ADDITIONAL EXEMPTION.—No elected public officer shall be held in

violation of subsection (7) if the officer maintains an employment relationship with
an entity which is currently a tax-exempt organization under s. 501(c) of the
Internal Revenue Code and which contracts with or otherwise enters into a business
relationship with the officer's agency and:
(a) The officer’s employment is not directly or indirectly compensated as a result
of such contract or business relationship;
(b) The officer has in no way participated in the agency’s decision to contract or
to enter into the business relationship with his or her employer, whether by
participating in discussion at the meeting, by communicating with officers or
employees of the agency, or otherwise; and
(c) The officer abstains from voting on any matter which may come before the
agency involving the officer’s employer, publicly states to the assembly the nature
of the officer’s interest in the matter from which he or she is abstaining, and files a
written memorandum as provided in s. 112.3143. [Section 112.313(15), F.S.]

In analogous matters involving elected public officers employed by tax-exempt organizations under
501(c) of the Internal Revenue Code the Commission has found that the exemption contained in
Section 112.313(15), F.S., is applicable to negate the conflict of interest under Section 112.313(7),
F.S., when all of the statutory criteria for application are satisfied. See CEO 18-6, CEO 07-11, CEO
01-4, and CEO 97-5. Similarly, in the instant matter, Section 112.313(15) apparently is applicable
to negate the conflict of interest under Section 112.313(7)(a) were the BOCC to select Health First,
Inc., for the expenditure of CARES Act funds, provided that Commission Isnardi refrains from
participating regarding the expenditure of funding to Health First, Inc. [see paragraph (b) of the
exemption] and abstains from voting on any matter involving the allocation of CARES Act funds to
Health First, Inc. [see paragraph (c) of the exemption]. 6

6
Nevertheless, and without in any way intending to suggest doubt as to the Commissioner's
personal integrity, she should be cognizant of, and continue to comply with, the requirements of
Sections 112.313(6) and 112.313(8), Florida Statutes, which prohibit any public officer from
Ms. Eden Bentley
August 11, 2020
Page 6

Further, Commissioner Isnardi must be cognizant of and comply with the requirements of
the voting conflicts provisions of Section 112.3143(3)(a), F.S. Section 112.3143(3)(a), F.S.,
prohibits a public officer from voting on any measure which could result in a "special private
gain or loss" to (among others) a "principal by whom retained." The term "principal by whom
retained" is defined, in Section 112.3143(1)(a), F.S., to mean:

an individual or entity, other than an agency as defined in s. 112.312(2), that for

compensation, salary, pay, consideration, or similar thing of value, has permitted
or directed another to act for the individual or entity, and includes, but is not limited
to, one’s client, employer, or the parent, subsidiary, or sibling organization of one’s
client or employer. [emphasis added]

Thus, the definition of "principal by whom retained" contained in Section 112.3143(1)(a), F.S.,
provides that a voting conflict may be present when a public officer is presented with a
vote/measure which could inure to the special private gain or loss of his or her client, employer,
or the parent, subsidiary, or sibling organization of one's client or employer. For example, in
CEO 03-13, the Commission found a voting conflict of interest would be created were a city
council member to vote on measures concerning expansion of a medical center owned by a
corporation that was owned by another corporation which owned yet another corporation which
owned still another corporation which employed the member. In the instant matter, any
votes/measures involving the BOCC's allocation of CARES Act funds to Health First, Inc.,
would inure to the special private gain or loss of the parent organization of her employer,
HFMG. Thus, Commissioner Isnardi must abstain from any future votes/measures undertaken
by the BOCC regarding the allocation of CARES Act funding to Health First, Inc., (or to any
other subsidiary or sibling organization thereof) and follow the instructions for local public
officers on CE Form 8B; publicly announce the nature of her interest in the measure prior to any
vote associated therewith; and file a memorandum of voting conflict (CE Form 8B) with the
meeting's recording officer within 15 days after such a vote occurs.

In sum, it appears that the exemption contained in Section 112.313(15), F.S., would apply
to ameliorate conflicts of interest under Section 112.313(7)(a), F.S., were the BOCC to allocate
CARES Act funds to Health First, Inc., a holding company which owns, manages, and operates
HFMG, provided that all of the criteria for application set forth in Section 112.313(15)(a)-(c) are
satisfied. In addition, as explained above, any votes/measures involving the BOCC's allocation
of CARES Act funds to Health First, Inc., would inure to the special private gain or loss of the
parent organization of her employer, HFMG, and thus, give rise to a voting conflict of interest
requiring Commissioner Isnardi's abstention from voting and adherence to the additional
procedures set forth in the memorandum of voting conflict, CE Form 8B. The referenced
opinions and statutes are available on our website at www.ethics.state.fl.us. If any of the

corruptly using her public position or the resources thereof, or using "inside information" gleaned
in her public capacity, for the purpose of benefitting herself or any other person or business entity.
Ms. Eden Bentley
August 11, 2020
Page 7

material facts regarding this situation are other than as stated herein, please contact me, and, if
you have any additional questions, please let me know.

Sincerely,

Caroline Klancke

Caroline Klancke
Senior Attorney
Florida Commission on Ethics
Posted July 17, 2020

Bryan Lober •••

e 36m · 0
Health First doesn't care enough about the
community to allow any of their physicians to show
up at a County Commission meeting to speak on the
COVID-19 issue. This includes physicians who would
speak if they were permitted to do so. Instead,
everything has to go through Health First's
communications executives and be rubber-stamped
by the bureaucrats before going out. It's horrible that
front-line physicians are disallowed to voice their
expert opinions in the midst of a public health crisis.
Good job playing it "politically safe," Health First.
More will get sick and die because you muzzle your
physicians. So much for being a leader in the
community. If hospital administration doesn't trust its
physicians enough to allow them to speak candidly,
that's disturbing. Florida Today FOX 35 Orlando
90.7 WMFE WESH 2 New s # notpoliticallycorrect
# notdiplomatic # realtalk

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