The Fine Print

End of freebie for legislators and other state workers?

The Florida fund that pays the health care bills for tens of thousands of state employees will become insolvent in two years unless something drastic is done, state economists say. Someone has to fix the fund, either the taxpayers or state workers, and a top state senator says it should not be the taxpayers.

It's time to end the free health-insurance perk that legislators and 26,000 state workers -- those who aren't part of the career-service system -- now receive, says State Sen. J.D. Alexander, a Lake Wales Republican and chairman of the Senate committee that oversees the state budget.

The Department of Management Services has concluded that the state would collect an extra $44.9 million a year if it charged all state employees the same amount for health insurance. Rank-and-file state workers pay $50 a month for standard individual coverage and $180 a month for family coverage. 

"Quite frankly, it’s time we have the same for legislators as everybody else,’’ Alexander said. More here.

Contracting wars and conflict of interest charges

There were two major developments on Monday in some big-money state contracts.

As I first reported for The News Service of Florida, the law firm of Foley & Lardner on Monday bowed out of a bid dispute over a nearly $80 million advertising contract with the Florida Lottery. The move could have repercussions on ongoing lottery ticket sales because it could delay when lottery officials can bring on a new firm to handle more than $20 million a year spent on promoting lottery sales.

The Tallahassee office of the prominent law firm pulled out of the case after attorneys representing a rival bidder accused Foley & Lardner of having a conflict of interest. In a filing, the firm stated that while "Foley believes and asserts there may exist a legitimate difference of opinion as to the existence of any real conflict, to avoid even the appearance of any such conflict or impropriety, Foley intends to withdraw as trial counsel in the case."

As detailed in an earlier post, lottery officials planned to award a three-year advertising contract to St John & Partners Advertising and Public Relations but Zimmerman Advertising contends lottery officials mishandled the bidding process. The company filed a bid protest that is pending before an administrative judge.

Last week attorneys for St. John asked that the judge throw Foley attorneys off the case, saying they had a conflict of interest because the firm agreed earlier this year to represent the company on work involving a website. In the filing made on Monday, Foley asked the judge to delay any action on the bid dispute for 45 days to give Zimmerman time to find new attorneys. Lottery officials are currently splitting advertising duties between in-house employees and an ad firm that had been hired to do Spanish-language advertising.

The other contracting news is that an judge on Monday shot down a challenge to a more than $80 million contract for mental health services for South Florida inmates.

Administrative Judge Suzanne Hood ruled that the Department of Corrections should award a five year deal to Correctional Medical Services despite allegations from rival bidder MHM Correctional Services that the process used by the state was flawed.

Attorneys for MHM Correctional Services had blasted the decision to give the contract to CMS, saying it was a secret deal and that the department violated the Sunshine Law by attempting to keep private documents about why CMS was ultimately chosen. A Leon County judge in June said that he was "appalled" that the state chose CMS to provide the services for a separate - yet related - contract while the legal battle for the five year deal was still underway.

Hood, however, said MHM had failed to prove that the agency decision to eventually choose CMS had been contrary to Florida law. Hood also said the decision by the department to initially reject all the bids and then negotiate with CMS without telling anyone was a "harmless error."

"There is no reason to believe that the department would have followed a different decision making process or reached a different decision, wrote Hood in the ruling.

Chris Kise, an attorney with Foley & Lardner who represented MHM, said he was not surprised by the judge's ruling, which now goes to DOC Secretary Walter McNeil for a final decision. MHM could eventually take the case to an appeals court, but no decision has been made.

"I am saddened, as costs will go up and quality of care will go down, but not entirely surprised by the order as the judge does not get it,'' said Kise in an e-mail.

Legal battle over 527s expensive for state

A legal ruling that struck down a Florida law aimed at shadowy political groups has turned out to be expensive for taxpayers.

Earlier this month, the state forked over $140,690 to the Virginia-based Institute for Justice, which bills itself as a libertarian public interest law firm. Institute for Justice represented several groups that challenged a 2004 law that required certain political groups to register with the state and report their donations.

Jennifer Krell Davis, a spokeswoman for the department, said last week that the state was obligated to pay the attorney fees and costs because it had lost a lawsuit that alleged that the state law violated civil rights. More here.

Just exactly why the state decided at the last minute against appealing the ruling remains a mystery. A public records request for the Sarasota Herald-Tribune shows that all e-mails and correspondence regarding the lawsuit slow down to a trickle in the days before the appeal deadline. A request for notes from meetings held to discuss the lawsuit also yiedled little information.

Prominent firm hit with conflict-of-interest charges in contract battle

Well, this didn't take long. The battle over a Lottery Department contract outlined earlier this week is quickly getting heated.

As I first reported for The News Service of Florida on Wednesday: A bid dispute over a nearly $80 million contract from the Lottery Department took an unexpected turn on Wednesday with the accusation that a law firm involved in the dispute has a conflict of interest and should be thrown off the case.

Lawyers for St. John & Partners Advertising and Public Relations contend that the Tallahassee office of Foley & Lardner LLP cannot represent Zimmerman Advertising because the firm had a pre-existing agreement with St. John that states it cannot represent clients “in litigation adverse to St. John.” The agreement, which was filed in administrative court, states that attorneys in a different office of Foley & Lardner had agreed to help St. John with a website.

Lottery officials announced last month their plans to award a 3-year contract to St. John, a Jacksonville company.  But Fort Lauderdale based Zimmerman contends lottery officials mishandled the bidding process and should have disqualified the rival firm. The company filed a bid protest that is pending before an administrative judge.

Robert Hosay, the attorney with Foley & Lardner representing Zimmerman, would not comment on the motion to disqualify his firm. The court filing states that attorneys for St. John advised Foley of the potential conflict of interest on June 30, but that Foley attorneys asserted that their agreement with St. John had a conflict of interest waiver provision.

Attorneys for Hopping Green & Sams, who are representing St. John, state in their motion that St. John did not consent for Foley & Lardner to represent Zimmerman and that the judge can disqualify a law firm if it can be shown an attorney would be violating professional conduct rules. The motion further argues that Foley & Lardner has an "impermissible concurrent conflict of interest."

Big money lottery deal sparks contracting dispute

Here's a story that I did on Tuesday for the News Service of Florida

A well-known Fort Lauderdale advertising agency is challenging a decision by the Florida Lottery to hand over a nearly $80 million advertising contract to a rival firm.

The ongoing bid dispute has forced the Florida Lottery to handle some of its advertising duties in-house since the contract with its previous advertising company expired at the end of June. The turmoil over the contract comes at a time when the Lottery is already grappling with declining sales as the recession drags on. New forecasts for the current year predict that overall lottery ticket sales will decline by $117 million, or about a 2.9 percent drop.

Lottery officials announced last month their plans to award a 3-year contract to St. John & Partners Advertising and Public Relations, a Jacksonville company whose clients include Zaxby's and Ford. But lawyers for losing bidder Zimmerman Advertising contend that lottery officials mishandled the bidding process and should have disqualified the firm.

Plus they say that Zimmerman - which finished with a slightly lesser score - offered to do the job at a cheaper rate than St. John. Zimmerman is a nationally-known advertising firm whose clients have included the Florida Panthers hockey team, Papa John's Pizza and home builder Lennar.

"You don't even negotiate or talk to this other bidder despite the fact they are cheaper, and a much larger and more respected agency in Florida?'' said Robert Hosay, an attorney with the Foley & Lardner LLP law firm representing Zimmerman.

Jackie Barreiros, public affairs director for the Florida Lottery, said the department was "comfortable with the process" used to select St. John. Instead of using the more rigid request for proposal process, the department instead handled the contract through an invitation to negotiate process that included asking finalists to do a presentation.

But she said agency lawyers have been holding meetings to discuss Zimmerman's concerns about the final bid decision.

"We realize there is going to be disappointment when someone is not awarded a contract,'' said Barreiros.

This year the lottery was given $30.2 million to spend directly on advertising, which includes TV, radio and print advertising in both English and Spanish. St. John was selected to oversee the main contract worth up to $24 million this year. State legislators set aside an additional $3.48 million which can be spent on ad agency fees.

Because of the Zimmerman contract dispute the Lottery Department is having its marketing department - along with its Spanish-language ad agency - handle advertising duties for now.

Barreiros said that during final negotiations St. John offered to lower its agency fee to match the roughly 9.8 percent rate offered by Zimmerman in its initial bid. The total contract - which includes both the fees and advertising buys - could be worth nearly $80 million if lawmakers keep advertising spending levels intact until 2012.

This latest bid dispute marks the second time this summer that Foley & Lardner - which is home to Christopher Kise  - has challenged a major contract awarded by the administration of Gov. Charlie Crist. Kise is a former top aide to Crist. That firm is also representing MHM Correctional Services in a dispute with the Department of Corrections. Both Zimmerman and MHM are represented by Crist fundraiser and lobbyist Brian Ballard.

Zimmerman's lawyers have asked that an administrative law judge recommend either throwing out all the bids for the ad contract or that Zimmerman get the contract.

Only Tallahassee and D.C. insiders need apply

In a move that surprised few people, Lieutenant Gov. Jeff Kottkamp jumped into the race for Attorney General on Monday.

Kottkamp becomes one of four candidates in the race, which also includes two sitting state legislators, Sen. Dave Aronberg and Sen. Dan Gelber.

This race joins with a governor's race that features two Cabinet members, a bid for Agriculture Commissioner that includes a U.S. congressman, an environmental lobbyist, and the one-time head of the Florida Democratic Party, and the contest for Chief Financial Officer that has Sen. President Jeff Atwater and Rep. Pat Patterson. The U.S. Senate seat features of course, Gov. Charlie Crist, former House Speaker Marco Rubio and U.S. Rep. Kendrick Meek.

Do you notice who's missing? Florida's mayors.

Despite attempts to recruit figures such as Tampa Mayor Pam Iorio or Miami Mayor Manny Diaz, the statewide races for 2010 are void of any mayors. Another mayor expected to sit out the 2010 statewide races is St. Petersburg Mayor Rick Baker.

It's a curious decision since some of these mayors arguably have as much name recognition - or likely even more name recognition - than a state legislator or even a lieutenant governor. Plus, a big city mayor also brings another important factor for a statewide race - a base of homegrown voters that can help them get a leg up on any would-be competitors.

That's not to say mayors don't have their own baggage as well. Orlando Mayor Buddy Dyer prospects for statewide office were damaged by election fraud accusations in 2004 that were ultimately dropped.

Democratic political operative Steve Schale doesn't think there anything about being a mayor that disqualifies someone from seeking higher office. He said that mayors that are staying put are doing so because of their own circumstances.

"Politics is timing and opportunity,'' said Schale, who noted a lot of people encouraged Iorio to seek higher office.

Republican strategist Rick Wilson, however, noted that mayors in Florida aren't as powerful and influential as those in other states he has worked such as New York.

Wilson also notes that Bob Martinez was the last person to make the jump from mayor to governor when was elected in 1986. Martinez would lose re-election in 1990 to Lawton Chiles, who had been a U.S. senator for nearly 20 years.

But since that time there has been little interest from mayors in moving on. And those who have moved on haven't had great success.

Alex Penelas, who was the Miami-Dade mayor, came in third in the U.S. Senate primary in 2004 where he was pounded by some Democrats who said he didn't do enough to help Al Gore in 2000. Scott Maddox, who had been mayor in Tallahassee, finished a close second to Dyer in the Attorney General primary in 2002. (Dyer lost to Crist in the general election.) Maddox then briefly ran for governor in the 2006 elections.

Maddox recently announced that he was seeking the post of agriculture commissioner but one problem he could run into is that he will wind up answering more questions about his controversial stint as chairman of the Florida Democratic Party than his time as mayor of Tallahassee.

 

Did Crist change the Supreme Court or keep the status quo?

One of Marco Rubio's recurring broadsides against Gov. Charlie Crist is that Crist has handed over the judiciary in Florida to liberal activist judges. Rubio, the former House speaker running for U.S. Senate, has said that Crist appointed the most liberal judges ever to the state Supreme Court.

He sounded a similar refrain in a recent interview with The Weekly Standard where Rubio stated that he thought the governor had "permanently swung the court in Florida to an activist majority."

The article mentions the elevation of Judge James Perry to the Supreme Court. And it's true that Perry's appointment was questioned by conservative groups at the time. Many groups such as the Florida Family Policy Council and the National Rifle Association backed another judge for the job.

Perry replaced Justice Charles Wells, who despite being appointed by the late Gov. Lawton Chiles, often voted with the conservative wing of the court. Wells gave a famous dissent in the Bush v. Gore battles during the 2000 recount.

But the conservative wing of the court was usually in the minority on many notable decisions. (One big exception was the unanimous ruling striking down the law meant to keep alive Terri Schiavo.)

And sometimes Wells himself did not side with other conservatives, such as Bush v. Holmes where the court on a 5-2 vote struck down former Gov. Jeb Bush's signature private school voucher program. It was Wells who asserted the line of questioning during oral arguments that became one of the central tenets of the final ruling that stated the voucher program violated the constitutional requirement for a uniform system of public schools.

The key question, however, is whether or not Crist's four total appointments to the court have shifted its balance or kept it right where it was.

He replaced Justice Raoul Cantero with Justice Charles Canady, a former U.S Congressman and general counsel to Gov. Bush who Bush appointed to the Second District Court of Appeal. Cantero himself was a Bush appointee who was on the losing end of that voucher case and was viewed as part of the conservative wing.

Crist tapped Judge Ricky Polston to fill the spot left by Justice Kenneth Bell,another appointee of Bush on the conservative wing. Polston had been previously appointed by Bush to the First District Court of Appeal.

This past January Crist elevated Judge Jorge Labarga to the state Supreme Court to take the spot of Justice Harry Lee Anstead. It's probably this pick that could be the most crucial since Anstead was viewed as one of the more liberal members of the court.

Another highlight of this selection is that Crist appointed Labarga instead of Frank Jimenez, a former general counsel of Bush. The decision to add Jimenez to the list of nominees created a bit of a firestorm at the time it happened.

But if it turns out that Labarga comes out with a more moderate viewpoint than Anstead then the selection of Perry may wind up doing nothing more than keeping the court in the same place. Now that could be a disappointment to some since the high court has shown a propensity to say no to both the governor and the Legislature on a whole host of subjects. (Schiavo, worker's compensation, vouchers, you name it.)

More recently this court unanimously ordered Crist to appoint a new judge to the Fifth District Court of Appeal even though Crist didn't think the list given to him had enough diversity. 

Another interesting test: A 5-2 decision by the court to deny a motion by Liberty Counsel. That group wanted the court to block a section of The Florida Bar from filing a friend-of-the-court brief in an ongoing lawsuit challenging the state's ban on gay adoption. Polston and Canady dissented from this June ruling.

The court also decided by a 4-2 margin in June to uphold a lower court ruling that struck down a law allowing petition signers to revoke their signatures. The decision cleared the way for Hometown Democracy to get its controversial proposal on comprehensive plan amendments placed on the 2010 ballot. Perry did not participate in this decision. The two dissenting votes also came from Polston and Canady.

Now if Wells, Anstead, Cantero and Bell were still on the court would the end result have been any different?

When will Crist, Sink and McCollum have to take a stand?

Gov. Charlie Crist had just one public appearance in Tallahassee last week - a visit to the Florida Department of Elder Affairs. That appearance came the same day that his campaign announced that Crist had raised $4.3 million for his U.S. Senate campaign.

It wasn't too surprising then that most of the questions directed to the governor dealt with his fundraising acumen.

There was one question that dealt directly with his position on health care reform, a big issue right now in Washington D.C. Crist, who pushed through his own health care proposal last year, is governor in a state where as many as 1 in 5 adults under 65 are uninsured.

When asked about the ongoing health care debate and the idea of whether or not he is opposed to creating a public plan Crist had this response:

"Obviously the health care debate is incredibly important, it's a huge issue for Florida clearly and I think, you know, that we want to have as much as the private sector involved as possible,'' Crist said.

This is not an isolated incident. Crist has steered clear of talking much about any of the federal issues, although in that same availability he did say briefly that he did not believe that a second stimulus was needed. Crist's support for the first round of federal stimulus has become one of the items that GOP primary rival Marco Rubio has criticized him over.

But Crist's careful positioning over U.S. Senate issues is not unique to him. Both Attorney General Bill McCollum and Chief Financial Officer Alex Sink - the two leading contenders for governor - have been very careful in avoiding taking stances on controversial issues confronting Crist. Neither Sink or McCollum, for example, would take a position on the worker's compensation legislation that Crist ultimately signed. The bill was opposed by the state's trial lawyers and the Florida Police Benevolent Association but supported by business groups.

The two other main candidates in the U.S. Senate race are so far taking a different route than Crist. U.S. Rep. Kendrick Meek, the main Democrat in the race, has been touting the fact that he supported the federal stimulus and climate control legislation. Meek is making sure to remind everyone that he is working with President Barack Obama. And his website has an entire page dedicated to Meek's stances on different issues.

Rubio has spent most of his campaign focusing on what he thinks is wrong with the Obama administration all down the line. In a recent conference call with campaign supporters, Rubio criticized health care reform, the stimulus, climate control proposals and suggested that the removal of Honduras President Manuel Zelaya has been "misrepresented as a coup." On his Twitter page, Rubio went further and said "voters deserve to have candidates that will speak clearly about where they stand on the issues."

But of course Rubio is focusing on issues at the same time that he has to deal with the fact that he has been unable to win anywhere near the same amount of financial resources as Crist. Like it or not, fundraising is viewed by the media - and potential donors and supporters - as a sign of viability with the electorate.

The 2010 elections are still a long, long way off. There is an argument that can be made that there is no reason to take a stand on various issues until voters are actually engaged in the race. Right now, the election is being followed largely by grassroots activists, political junkies and media types.

Still it's worth wondering when the campaigns for governor - and U.S. Senate - will begin to focus on issues like health care reform, taxes, climate control, stimulus, gambling, etc. etc.

 

Will 2010 elections be a "disreputable cycle?"

It got little attention, but a recent legal decision could be a game changer in Florida politics.

The state’s top elections official, Secretary of State Kurt Browning, ended a legal fight over a state law that requires the public to know who is behind — and who is bankrolling — television and radio ads and direct-mail fliers that sharply attack or praise politicians.

Browning decided not to appeal a federal court’s ruling in May that declared the state’s regulation of these outside groups was unconstitutional.

Florida’s decision not to appeal the case signaled to some that the state has given up the fight to try to control money-driven politics.

“It’s horrible,” said State Sen. Dan Gelber, a Miami Beach Democrat running for attorney general. “The transparency was a Band-Aid on a huge problem. Now that Band-Aid has been ripped off. This has the potential to be a disruptive and disreputable cycle.”  More here.

The reason that the decision could be a game changer is because while the state plans to no longer regulate state level 527's, known as electioneering communication organizations, there is nothing in law that prevents these groups from coordinating their messages - which could be thinly veiled attacks on candidates - with campaigns.

That's because of this Division of Elections ruling from 2005. So in other words, allies of Bill McCollum or Alex Sink could raise large amounts of money (ECOs were never bound by any contribution limits even before the ruling) and use them on ads that mention their rival as long as the magic words "vote for" or "vote against" are never used.

It is worth noting that Judge Stephan Mickle found that the state law that required ECOs to register with the state and report their donations constituted prior restraint of the groups First Amendment rights and presented an unreasonable burden for political speech.

But there's no question this changes the landscape heading into the 2010 elections unless state lawmakers attempt to regulate these groups again. However that effort could be largely dependent on what the U.S. Supreme Court does. The court made the unusual decision last week to order a new round of oral arguments in a closely-watched campaign finance case. Some groups, such as the one that sued over Florida's law, contend that is a signal that the court will strike down the ban on electioneering groups that now exists under federal law.