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September 2011 at www.WestsideObserver.com
Laguna Honda Hospital Scandal
Patient Gift Fund Records Referred to D.A. and Feds
by Patrick Monette-Shaw
As I reported in the Westside Observers JulyAugust edition, fallout from the Laguna Honda Hospital gift fund scandal has expanded, with citywide implications into City Halls ethical mess. Its amazing Laguna Honda Hospitals CEO, Mivic Hirose, has retained her job.
The two Sunshine ordinance complaints filed by this author to unearth gift fund records have now been referred to the District Attorneys Office and the Ethics Commission for enforcement. Both the Ethics Commission and the City Controllers Office have refused, willfully, to release public records.
In another action, access to the Whistleblower Programs investigative files has moved into Federal court, in part for failure to release the same records.
In June, the Sunshine Ordinance Task Force issued two separate Orders of Determination to both the Ethics Commission and the City Controllers office, ordering that the records requested must be produced, since the City failed to demonstrate a valid exemption under Californias Public Records Act justifying reasons for withholding the records.
The Task Forces compliance committee ruled unanimously on July 12, that both the Controllers Office and the Ethics Commission had failed to comply with the Task Forces two Orders of Determination. The subcommittee returned the two complaints to the full Task Force, with a recommendation that the Task Force find Tonia Lediju, the manager of the City Controllers whistleblower program, and John St. Croix, Executive Director of the Ethics Commission, engaged in willful failure and official misconduct for failure to comply with the SOTFs initial Orders of Determination.
The SOTFs referral for enforcement to the D.A. cited City Charter section 15.105(e), Official Misconduct, and Sunshine Ordinance Sections 67.34 (regarding willful failure) and 67.21(e) (requiring the D.A. to insure compliance when records custodians refuse to comply with a Sunshine Order).
On July 26, 2011, the full Task Force adopted the recommendation from its Compliance and Amendments Subcommittee, adding that in addition to referring the two cases to the District Attorney and the Ethics Commission, the two new Referrals for Enforcement should also be sent to Interim Mayor Ed Lee and to the San Francisco Civil Grand Jury.
The final determination by the SOTF highlights the Citys resistance to releasing patient gift fund whistleblower records.
It will be interesting to see if appointed District Attorney George Gascón who is busy running to be elected as one of our top law enforcement officials will step up to the plate and order enforcement, or whether hes too busy with his election campaign to uphold his oath of office.
Surprisingly, news just surfaced that the Ethics Commissions Chief Enforcement Officer, Richard Mo who unsuccessfully defended the Ethics Commission when my Sunshine complaint was heard on April 26 is suddenly no longer employed at Ethics, effective mid-August. His defense didnt work, and now hes gone?
It will also be interesting to see what our Interim Mayor Ed The Liar Lee does with the referrals on the Sunshine complaints.
In another development, former Laguna Honda Hospital hospice physician Derek Kerrs wrongful termination and whistleblower retaliation lawsuit has moved into Federal court. Kerrs legal team sought access to both the Ethics and Whistleblower Programs investigative files involving the Laguna Honda Hospital patient gift fund scandal, and sought in their Federal motion to compel depositions from Ethics and Whistleblower Program staff. Both agencies declined allowing some of their respective employees to be deposed in Kerrs lawsuit.
On August 11, the Federal Magistrate assigned to Kerrs case requested all documents acquired to date during discovery. He apparently wanted to review them all, in addition to a potential in camera review of other whistleblower program records.
In camera reviews allow judges to review documents in private, before determining admissibility in open court.
This signaled that the issues were being taken seriously by the Magistrate and that he did a lot of background work. The Magistrate ordered on August 24 release of any documents showing communication between the Ethics Commission and the Whistleblower Program to and from anyone in the Department of Public Healths staff, for the Magistrates further in camera review. The Magistrate will then decide whether to order additional staff be deposed.
The good news is that there has been some movement on the other whistleblower complaints doctors Kerr and Rivero filed that I mentioned in the last issue. Sadly, there has been no action regarding the whistleblower complaint against former Director of Public Health Mitch Katz, who I reported last month had received consulting fees from the Chicago firm, Health Management Associates. HMA collected $103,000 from a DPH consulting contract, during the same period it paid $30,000 to Katz over three years. The sin? DPH paid HMA, while HMA paid the DPH boss who approved and oversaw HMAs contract.
Belatedly, City Controller Ben Rosenfield (himself) finally took action on Kerrs and Riveros whistleblower complaint about Davis Ja and Associates, which involved conflict-of-interests between DPH employee Deborah Sherwood and her husband Davis Ja, who had been awarded a $1.9 million consulting gig. It turns out that because Sherwood co-wrote the RFP eventually awarded to her hubby, Ja; was the Project Manager for the contract; was an official answering questions about the RFP and possibly the final contract; and had allowed a direct-report to serve on the interview panel, Controller Rosenfield belatedly cancelled the contract for convenience, after he recently discovered through a public records request, that there was any problem at all.
This may potentially result in a refund to the City of some $400,000, based on scheduled payments to Mr. Ja that were canceled on July 29, 2011.
Rosenfield only canceled the Ja contract on July 29, almost two years after the whistleblower complaint had been submitted. Had Rosenfields whistleblower staff never informed him of the initial whistleblower complaint filed against Ja in September 2009?
Rosenfield claims hes informed of all high-risk whistleblower complaints, but now he claims he only learned of this case just weeks ago through a public records request. Rosenfield didnt admit the new records request was placed by doctors Kerr and Rivero, even though they had filed a whistleblower complaint fully two years ago.
Sherwood whose pal is her husband Davis Ja was formerly supervised by Dr. Bob Cabaj, who abruptly resigned from the Health Department in May 2011. Two months later, Jas contract was suddenly revoked, and Richard Mo also suddenly vanished.
Whats wrong with this picture? Could any of this be related?
Despite Rosenfield suddenly yanking the contract, the Ethics Commission is still dragging its feet and may still be investigating. Why did it take the City Controller two years to arrive at yanking Jas contract, and why is Ethics still investigating it? Should we start referring to this as the Jerwood scandal?
The Civil Grand Jury released its report on the Whistleblower Program after the Observers last edition went to press. Their report is highly critical of the Controllers whistleblower program, noting that the Ethics Commissions efforts to protect City employees against retaliation for exposing wrongdoing isnt working.
During the Citizens General Obligation Bond Oversight Committees hearing on August 11, Controller Ben Rosenfields proposed response to the Grand Jurys findings was debated. Remarkably, CGOBOC approved the Controllers response to the Grand Jury that there is no need to implement an appeals process for whistleblowers who are not satisfied with the disposition of their cases.
Rosenfield brazenly responded to the Grand Jury that citizens and employees can petition a court, or can appeal to the Board of Supervisors heartstrings, if the outcome of their whistleblower complaints arent resolved satisfactorily. Rosenfields slap in the face is appalling, since most citizens cant afford mounting a Court challenge, nor do they have easy access to an incompliant Board of Supervisors. The idiocy of CGOBOCs stamp of approval on Rosenfields response is appalling, but may be explained by who appointed each CGOBOC member to their oversight seats.
Its not too surprising Rosenfield disagreed with most of the Grand Jurys findings. Had he agreed, he would be admitting the whistleblower program is a failure, as the Grand Jury tried to explain. Even the San Francisco Examiner published an editorial spanking Rosenfield for resorting to damage-control, rather than restoring public faith in the whistleblower program.
It took CGOBOC seven years to even get around to forming a subcommittee to review whistleblower complaints, despite clear language in the 2003 Prop C measure requiring them to investigate all whistleblower complaints. The subtext of CGOBOCs remarks on August 11 is that they may want to reevaluate what their role is in investigating whistleblower complaints. They still dont know what their role is, going on eight years later.
Candidate for mayor Dennis The Ultimate Clean-Government Menace Herrera, and his so-called public integrity unit, have been missing in action, and hasnt lifted a finger in any of these whistleblower and sunshine complaints. Neither has D.A. George Gascóns or his predecessor, Kamala Harris public integrity unit lifted a finger.
Is this what Laguna Honda patients robbed of probable
misappropriated funds or we the voters, deserve by way
of an ethical government? So far there have been few consequences
of these abuses of government powers.
Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of Californias First Amendment Coalition. Feedback: firstname.lastname@example.org.
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