Hospital Commissioner's Emails Reveal Personal Rivalries, Ethical Gray Areas

Broward Health Commissioner Robert Bernstein is known both for his emphasis on ethics and for his short temper. In a string of emails to the district's CEO, it appears he was torn between those two impulses.

On one hand, Bernstein was an enthusiastic supporter of ethics reform that occurred in 2007, when the district's charter was amended to include a "non-interference provision" that barred commissioners from involving themselves in the district's management, except to ask questions and get information from the CEO's office.

On the other hand, it's apparent that at approximately this time last year, Bernstein was furious about CEO Frank Nask's management decisions and managerial style. Bernstein suspected Nask of collaborating with Bernstein's rival on the commission, Joseph Cobo, to exclude Bernstein from having a role on favored hospital district policies.

Nask himself was bothered enough by Bernstein's emails to share them with then-Chief Operating Officer Spencer Levine, who forwarded them to the district's chief compliance officer, who monitors ethical issues, among other duties.

Excerpts of those emails after the jump, as well as the explanations now being offered by Nask and Bernstein.

The non-interference provision in the charter is what ensnared Cobo earlier this year. The commissioner was accused of tampering in district management in a way that would boost business for his physician consulting firm.

That internal investigation by the district is now part of a pending criminal investigation by the Broward State Attorney's Office.

The non-interference provision contains an exception through which commissioners can ask questions of the CEO; Bernstein had a loaded batch of them in his email of October 30, 2008: Why is a contracted heart surgeon getting favorable treatment compared to Broward Health employees in the cardiology department at North Broward Medical Center? Why was Bernstein not given a chance to review the resumes for the general counsel position that was open at that time? And why wasn't Nask consulting Bernstein about the district's home health-care agency?

Those questions led up to one last, even more loaded question:

Why have you ignored me on every single issue you know I have expertise on and all of a sudden Joe Cobo is your best friend and the guy who knows everything when a month ago you considered him the village idiot and you and (board chair) Mike (Fernandez) spent six months trying to get me to be the treasurer and then stabbed me in the back.

In his note, Bernstein forgot to put a question mark at the end of that question. Indeed, it sure sounds like it's more of a declarative statement than a question. His next line takes an even more threatening tone.

Just know I am not going away, and I look forward to the challenge of making sure everything at the district is run ethically, as it did before Alan [Levine] left. Things sure did change quickly around here.

Former CEO Alan Levine left the district in January 2008. He now holds a cabinet position under Louisiana Gov. Bobby Jindal.
In a note that same day, Nask coolly addressed each of Bernstein's concerns -- except for the allegation of favoritism toward Cobo. Nask then forwarded the correspondence to Spencer Levine, who forwarded to Bradley, along with a short message: "FYI. Thanks."

Nask's answer did not, however, mollify Bernstein, who detected more conspiracy. In an email he wrote the following day, Bernstein pointed out that Nask had suggested the board bypass the public meeting in hiring its general counsel, on the basis that both search teams agreed it should be Marc Goldstone, a health-care attorney who was then practicing in Tennessee. Bernstein was not enamored with Goldstone, but it appears he went along with it, only because he felt he was in the minority. He told Nask:

Now I have been told I told by Tallahassee that [Commissioner] Maureen [Jaeger] told she never supported Goldstone. So either you lied to me about what took place or Maureen is lying to Tallahassee.

In the same note, Bernstein elaborated about his frustration over the district's home health program, which had been losing money, a problem that Bernstein felt he was qualified to correct. Again, he swoops dangerously close to the non-interference provision, telling Nask:

[O]ur Home health business is broken, you seem to not want to take my advice on how to fix it, and instead you're spending money on consultants. Good luck, in six months my guess is it will still be broken... My emails and phone calls to you suggesting what the problems are and simple solutions to fix them are well-documented. I will stand by what I know as a health-care CEO for 25+ years with a proven track record of successful outpatient health-care operations.

Nask also forwarded that email to Levine, who again passed it along to Bradley.
Giving Bernstein the benefit of the doubt, his testing of the non-interference provision appears to flow through a sense that he knows what policy would be best. If it's just a power play, it's less troubling than the allegations against Cobo, who is dealing with questions that he used his commissioner's role to profit personally.

But for the taxpayers who contribute more than $100 million annually to what is a $1 billion public hospital district, the question is whether these efforts at persuasion, as well as personal rivalries like those between Bernstein and Cobo, create undue stress and distractions for an executive like Nask, whose job is complicated enough. To keep his job, Nask needs to keep himself in the good graces of at least four of the seven board members.

In response to questions I emailed last week, Nask told me:

I have a statutory professional relationship with all the commissioners. The record would indicate, and Commissioner Bernstein would back this up, that he has voted favorably to the majority of my recommendations to the board. As with any position that reports to the board, there are frequently times of disagreement by one or more members on specific topics. That is not unusual and is part of business and professional relationships.

I told Nask that it seemed he forwarded those emails to Levine out of concern that they ran afoul of the non-interference provision. He told me:

Your assessment is wrong. Spencer Levine oversaw our compliance program during his employment here. It is not uncommon, since the situation you reference involves multiple commissioners communicating with me and the governor's office, to form the head of compliance to ensure compliance with Florida Sunshine Law.

Bernstein told me he didn't know that Nask had forwarded the notes to the district's compliance department, but he insists he was acting in accordance with the charter.
Responding to questions I emailed him last week, Bernstein said:

Seeking information from or discussing an issue with the CEO is exactly what a Commissioner is supposed to do, so I see no relevant connection between these issues and the non-interference provision.

Of course, there's a fine line between "seeking information" and individually seeking to influence hospital district management. The charter's non-interference provision dictates that the "board of commissioners only exercise its oversight function as a whole body and not through the actions of any individual commissioner."

But at the same time, the provision allows for commissioners' right for "providing information about any issue to the president/CEO or to the board of commissioners."

I asked Bernstein to elaborate on some of the concerns he expressed in his notes to Nask. The home health-care one seemed particularly aggravating to him. Last week, Bernstein wrote:

Mr. Nask had called me and asked for my advice about the failing home health-care agency, at the time losing $1,000,000 annually. I had many more years of direct outpatient health-care experience than Frank and I assume that is why he asked for my help. When what I told both Frank and the Home Health Agency management conflicted with the outside consultant management had hired, my opinion was no longer appreciated.

I assume Frank received complaints that I had ruffled some feathers, and there was an attempt to make me look like I did not know what I was talking about. I do not believe Frank was in any way involved in that attempt, but he did have to deal with my anger over it.

My hope is that they have made progress in this department. People who know me well appreciate that although I have a big mouth, I rarely give my opinion when I do not know what I am talking about.

Finally, Bernstein's response to a question of whether Nask was playing favorites among the commissioners:

In general, if Mr. Nask was going to make unilateral changes affecting NBHD policy on issues not coming before the board for a vote, discussing changes with a few board members and not all the board members was not a good policy. This was what was involved in this last issue.

For more on Nask, including his controversial departure from St. Mary's and Good Samaritan hospitals earlier this decade, see this post in today's edition of According to DeGroot.