IN THE CIRCUIT COURT FOR THE
17TH JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA

DAVID DI PIETRO, as Chair of the CASE NO: 16-005120 CACE (25)

North Broward Hospital District dfbr'a

Broward Health, JUDGE: CAROL-LISA PHILLIPS
Petitioner,

vs.

GOVERNOR RICK SCOTT OF
FLORIDA,

Respondent.
I

FINAL ORDER GRANTING AMENDED PETITION FOR WRIT OF
QUO WARRANTO

THIS CAUSE came before the court on Petitioner?s Amended Petition for Writ of Quo
Warranto. The court, having considered the amended petition, response, Executive Order 16-78,
argument of counsel, and being otherwise duly advised in the premises, rules as follows:

This action arises out of the issuance of Executive Order Number 16-78 (?Executive
Order?), dated March 18, 2016, by respondent, Governor Rick Scott (?ReSpondent") that resulted
in the suspension of petitioner, David Di Pietro, as Chair of the North Broward Hospital District
(?Petitioner?). On March 22, 2016, Petitioner ?led the instant amended petition for writ of quo
warranto, requesting Respondent to demonstrate the authority and legal basis for the issuance of
the Executive Order. On March 22, 2016, the court issued an alternative writ, commanding
Respondent to show cause as to why the relief requested in the amended petition should not be
granted. 011 April 6, 2016, Respondent ?led his response to the amended petition. A hearing was

held before the court on April 8, 2016.

CASE NO: lei-005120 CACE (25)

On September 9, 2011, Petitioner was appointed by Respondent to the Board of
Commissioners for the North Broward Hospital District (?Broward Health"). Pursuant to the
North Broward Hospital District Charter (?Charter?), which was established by a special act of the
Florida Legislature in 2006, the Board of Commissioners (?Board?) was created to act as the
governing body of Broward Health. The Board consists of seven members and is led by a single
chairperson. Members of the Board are appointed by the Governor to serve a four year term. On
December 20: 2013, Petitioner was re-appointcd to serve as member with a term ending on June
27, 2017. On October 23, 2013, Petitioner was elected in a unanimous vote to serve as Chair of
the Board, and has been rc-elected every year thereafter. On March 285 20165 Respondent signed
the Executive Order, resulting in Petitioneris suspension from the Board.

Neither party disputes this Court?s jurisdiction to entertain the instant amended petition for
writ of quo warranto. See State ex rel. Vance v. Wellmou. 222. So. 2d 449, 449 (Fla. 2d DCA
1969) (noting ?[o]rderly procedure dictates that we respect that philosophy and that petitions for
extraordinary writs be heard first in the circuit court unless there is some compelling reason for
invoking the original jurisdiction of an appellate court"); see also, Art. V, Fla. Const. and
Fla. R. Civ. P. and Further, Petitioner does not challenge Respondent?s
authority to remove an of?cial from of?ce. Under Florida law,

the proper function of the writ [of quo warranto] is to provide the
petitioner with the ability to challenge the state of?cer?s authority to
act without regard to the question of whether the o?icer properly
exercised the authorin he or she possesses.

Florida House of Representatives v. Crisr, 999 So. 2d 601, 621 (Fla. 2008) (emphasis in original).

Respondent is a state of?cer pursuant to Article IV, Section 1 of the Florida Constitution.

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CASE NO: 16-005120 CACE (25)

Rather, Petitioner asserts that the Executive Order is facially de?cient because it fails to
place Petitioner on notice of his wrongdoing. Article IV, Section 7 of the Florida Constitution,
provides:

[b]y executive order stating the grounds and ?led with the custodian
of state records, the governor may suspend from of?ce any state
of?cer not subject to impeachment, any of?cer of the militia not in
the active service of the United States, or any county of?cer, for
malfeasance, misfeasance, neglect of duty, drunkenness,
incompetence, permanent inability to perform of?cial duties, or
commission of a felony, and may fill the of?ce by appointment for
the period of suspension. The suspended of?cer may at any time
before removal be reinstated by the governor.

Art. 1V, 7, Fla. Const. The procedural methodology by which the provisions of Article IV,
Section 7' of the Florida Constitution are exercised have been codi?ed in section 1 1241(1), Florida
Statutes, which provides, in pertinent part:

[t]he order of the Governor, in suspending any of?cer pursuant to

the provisions of s. 7, Art. IV of the State Constitution, shall specify

facts suf?cient to advise both the of?cer and the Senate as to the

charges made or the basis of the suspension.
Fla. Stat. In the instant action, Respondent suspended Petitioner for alleged acts of
malfeasance as described by a March 18, 2016 letter (?Letter?) drafted by Chief Inspector General
Melinda M. Miguel (?Miguel?), and incorporated into the Executive Order. Under Florida law,

[m]alfeasance has reference to evil conduct or an illegal deed, the

doing of that which one ought not to do, the performance of an act

by an of?cer in his of?cial capacity that is wholly illegal and

wrongful, which he has no right to perform or which he has

contracted not to do.
State ex rel. Hardie v. Coleman, 155 So. 129, 132 (Fla. 1934). The court has carefully reviewed

the Executive Order and the Letter, and ?nds that the Letter is insuf?cient to place the Petitioner

on notice of any alleged malfeasance. This Court acknowledges that the Respondent?s burden of

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CASE NO: 16-005 120 CACE (25)

proof is low; however, the Executive Order and the Letter are devoid of any speci?c acts of
malfeasance as it relates to the Petitioner. See Hardie, 155 So. at 133 (holding ?if the order names
one or more of the grounds embraced in the Constitution and clothes or supports it with alleged
facts suf?cient to constitute the grounds or cause of suspension, it is see also,
Crowder v. State ex rel. Baker, 285 So. 2d 33, 35 (Fla. 4th DCA l973) (?Simple justice requires
that there be at least enough Speci?city as to fairly apprise the accused of?cer of the alleged acts
against which he must defend himself?). Further, under Florida law,

the allegation of fact contained in the executive order of suspension
need not be as de?nite and speci?c as the allegations of an
information or an indictment in a criminal prosecution, and the
allegations will be adjudged as suf?cient if, on the whole, they bear
some reasonable relation to the charge made against the of?cer.

Crowderthe Letter, which Miguel acknowledged was based on an incomplete
review, raised ten separate concerns. In each of those ten concerns, Miguel asserts that the Board,
as a whole, has done something wrong. Petitioner is only mentioned three times:

I [Miguel] informed the Chair of the Board of Commissioners that
a review was to take place.

I At [Miguel?s] request, then Chief Executive Of?cer (CEO)
Kevin Fusco, at the direction of the Chair of the Board, issued
instructions on March 1, 2016, to all Broward Health employees
that they may report any concerns directly to the Of?ce of the
Chief Inspector General without fear of retaliation or adverse
personnel action.

I At a minimum, [Miguel believes] that David Di Pietro, and
Darryl Wright, because of their key leadership positions as Chair
of the Board and Chair of the Audit Committee, respectively,
should be suspended to neutralize their ability, or even their
perceived ability, to retaliatel?interfere or to operate in a
perceived management role of Broward Health.

The court determines that these three times where Petitioner is mentioned do not rise to

the level of malfeasance such that the court could sustain the Executive Order. Further, reviewing

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CASE NO: 16-005120 CACE (25)

the Letter, in toro, reveals no allegations that bear a reasonable relation to the charge made against
the Petitioner; rather, the Letter accuses the Board, as a whole, of acts of malfeasance without
specific reference to the Petitioner.

Alternatively, ReSpondent argues that Petitioner violated the mandates of the Charter,
which constitutes malfeasance. See Op. Att?y Gen. Fla. 2011-12 (2011) provisions of
section 5(2) of the charter speci?cally make a violation of the ?non-interference? clause an
occasion of malfeasance within the meaning of Article IV, section 7(a) of the Florida
Constitution?). The Charter de?nes the Board?s governing authority as that of a corporate body,
which includes the power to sue and be sued, contract, appoint a chief executive of?cer, among
other powers. The Charter also defines the Board?s power of oversight, which provides, in
pertinent part:

It is the ?nding of the Legislature that it is not in the public interest
for any member of the board of commissioners to operate in the
perceived role of management while simultaneously exercising
the charter oversight duties contemplated by creation of this special
act. It is therefore the intent of the Legislature that the board of
commissioners only exercise its oversight function as a whole body
and not through the actions of any individual commissioner. It is
also the intent of the Legislature that there be an explicit segregation
of duties between the functions of operational management of the
district and oversight by the board of commissioners. Except for
the purposes of inquiry or information, a member of the board
of commissioners shall not give direction to or interfere with any
employee, of?cer, or agent under the direct or indirect
supervision of the PresidenthEO. Such action shall be

malfeasance within the meaning of Art. IV, 5. 7(3) of the Florida
Constitution

Chapter 2007-299, Laws of Florida (emphasis added). The Executive Order states that
Petitioner violated the Charter by interfering with ?any employee, of?cer, or agent under the direct

or indirect supervision of the PresidenL?CEO.? (Executive Order at 1). As asserted by the

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CASE NO: 16-005120 CACE (25)

Respondent, the Letter ?amply attests to interference in her investigation of the Board by the Board
and its outside counsel." (ReSponse at 11). Despite Respondentis argument to the contrary, such
interference could not constitute a violation of the Charter, as Miguel is not an employee, of?cer,
or agent under the direct or indirect supervision of the Presidentr?Cl-LO. Further, any alleged
interference of Barrett, General Counsel of Broward Health, could similarly not violate the
Charter as Barrett reports directly to the Board, and not the CEO. Thus, this Court must
conclude that the Executive Order fails to allege a single fact that bears a reasonable relation to the
charge that the Petitioner violated the Charter.

Finally, the court rejects Respondent?s argument that ?the notion that the suspension could
only be based on acts committed directly by Petitioner and apart from the Board, and only on acts
committed by him which directly interfered in a relationship between the CEO and an employee
of Broward, is legally unsustainable.? (Response at 13). First, Respondent fails to provide legal
support for its contention. Second, such a position is unsupported by Florida law, as the Florida
Constitution and Florida Statute demand that a suspension of any elected or appointed of?cial
?shall specify facts suf?cient to advise both the of?cer and the Senate as to the charges made or
the basis of the suspension.? 112.41, Fla. Stat. This Court concludes that the Executive Order
fails to comply with section 112.41, Florida Statutes. Therefore, should the Respondent exercise
his authority and reissue another executive order, such executive order must comply with Florida
law.

Accordingly, it is hereby:

ORDERED that Petitioner?s Amended Petition for Writ of Quo Warranto is GRANTED.

IT IS FURTHER ORDERED that Executive Order Number 16-78 is hereby QUASHED.

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CASE NO: 16-005120 CACE (25)

IT IS FURTHER ORDERED that ReSpondent Governm Rick Scott restore Petitioner
David Di Pietro to the Board of the North Broward Hospital District= forthwith.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida: this day.r of April,

2016.

 

   
 

CI TIT COURT JUDGE
Copies to:

Bruce D. Green, Esq., Bruce David Green, P.A., 1313 South Andrews Avenue, Fort Lauderdale, FL 33316
Brian Silber, Esq, Law Of?ces of Brian Silber, RA, 12 SE. 7th Street, Suite 7051 Fort Lauderdale, FL 33301
Jay S. Speehler, Esq., Jay Speehler, 200 South Andrews Avenue, Suite 900, Fort Lauderdale, FL 33301

Blaine H. Winship, Esq. and William H. Slaf?f'orcl= Ill, Esq: Office ofthe Attorney General, The Capitol,
Tallahassee, FL 32399

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