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Agenda 03/23/2010 Item #16K 3Agenda Item No. 16K3 March 23. 2010 Page 1 of 26 EXECUTfVESU~ARY Recommendation that despite a potential conflict with Marcy Krumbine, that the County Attorney's Office continue to provide defense to Collier County and Physician Led Area Network (PLAN) in the lawsuit styled Deborah Dahlmanns v. Plan and Marcy Krumbine, Case No. 09-7915-CA OBJECTIVE: To apprise the Board of a potential conflict between PLAN and Marcy Krumbine in the lawsuit styled Deborah Dahlmanns v. Plan and Marcy Krumhine, Case No. 09- 7915-CA, and with such knowledge that the Board reaffinn that it wishes the Office of the County Attorney to defend PLAN in this lawsuit. CONSIDERATIONS: On February 9, 2010, the Board of County Commissioners authorized the Office of the County Attorney to defend PLAN in the above-referenced lawsuit. As background, the facts underlying this dispute are as follows. At all relevant times, Marcy Krumbine, the Director of Housing and Human Services for Collier County, was serving as Chairperson of the Board of Directors of PLAN. Deborah Dahlmanns alleges that she entered into an employment agreement with PLAN signed by Marcy Krumbine as Chairperson for the position of Executive Director of PLAN, and that afterwards she was notified of her tennination in a letter written by Ms. Krumbine. Prior to this instance, other Collier County employees have served on the Board of PLAN. PLAN is a not-for-profit entity created to provide medical care for indigent Collier County residents. It operates on grant funds and donations. PLAN advised the County that it has no funds to provide an adequate defense. Although PLAN secured liability insurance, pursuant to its contract with the County, the insurance company has agreed only to provide a defense for Ms. Krumbine. The insurer's position is that an action on a contract of employment is excluded from coverage. The Board found that a defense of PLAN was in the public interest and served a public purpose by preserving funds for indigent health care for Collier County residents. In the Executive Summary in which the Board authorized the County Attorney's Office to defend PLAN, the County Attorney advised the Board that "If the Board authorizes this Office to represent PLAN, this Office will do so provided there is no conflict with the Board of County Commissioners. There may come a time, however, where the best interests of PLAN do not coincide with the best interests of Marcy Krumbine. Should such a conflict arise, this Office will seek further direction from the Board." That day has come. Based upon this Office's investigation, it is now the legal position of PLAN that there is no record of Board action where Marcy Krumbine ever presented the alleged employment agreement to the Board for official approval, or that Ms. Krumbine ever received due authorization from the Board to enter into a written employment agreement with Deborah Dahlmanns. This position may ultimately be in conflict with the position in the litigation taken by Ms. Krumbine. Based on these discussions, as of the date this Board hears this matter we will have, or will shortly be filing on behalf of PLAN, a Motion to Dismiss PLAN from this suit and withdrawal of previously filed answer and affinnative defenses which were filed by PLAN's Agenda Item No. 16K3 March 23, 2010 Page 2 of 26 former counsel, a draft copy of which is included as part of the agenda package. If we continue to represent PLAN, there may come a time when this Office, on behalf of PLAN, defends the action based upon an unauthorized act by Ms. Krumbine. Whether or not PLAN is exonerated based upon this defense is not yet known, If it is not exonerated, PLAN may decide to seek, among other things, relief from the insurance company defending Ms. Krumbine or from Ms. Krumbine. This, however, will be PLAN's decision. The County Attorney's Office will not represent PLAN post-judgment. This Office provides significant legal support to Ms. Krumbine and her Housing and Human Services Department. The primary assistant county attorneys supporting this Department are Colleen Greene and Jeff Wright. Jacqueline Hubbard of this Office is defending PLAN. Accordingly, based on this segregation of assignment within the Office, the County Attorney believes that this Office may continue to represent PLAN, provided that both the Board and the County Manager's Office are comfortable with the arrangement. FISCAL IMPACT: There will be no out-of-pocket expenses, as all legal work will be done by this Office. Under the retention agreement with PLAN, Collier County may seek reimbursement for all outside costs incurred by the Office of the County Attorney, including deposition costs, court reporter costs, copying, and mailing costs. If an adverse judgment is entered by the Court against PLAN, the County has specifically agreed with PLAN that the County will have no responsibility to pay it. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the Board reaffirm that it wishes the Office of the County Attorney to defend PLAN in this lawsuit. PREPARED BY: Jeffrey A. Klatzkow, County Attorney 2 Item Number: Item Summary: Meeting Date: Agenda Item No. 16K3 March 23, 2010 Page 3 of 26 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 16K3 Recommendation that despite a potential conflict with Marcy Krumbine, that the County Attorneys Office continue to provide defense to Collier County and Physician Led Area Network (PLAN) in the iawsuit styled Deborah Dahlmanns v. PLAN and Marcy Krumbine, Case No. 09-7915-CA 3/23/2010 9:00:00 AM Dale Prepared By Jeff Klatzkow County Attorney 3/16/201012:31:44 PM Date Approved By Jeff Klatzkow County Attorney 3/16/20101:21 PM Date Approved By OMS Coordinator County Manager's Office Office of Management & Budget 3/16/20101:41 PM Date Approved By Mark Isackson Office of Management & Budget ManagemenUBudget Analyst, Senior Office of Management & Budget 3/16/2010 3:54 PM \~ J Agenda Item No. 16K3 Ma~c 23 ~Q.~ Agenda Ue Q'41 I': FebrUa "9, 2 1 Page 1 of 10 EXECUTIVE SUMMARY Approval 01 agreement between Collier County and Physician Led Area Network (pLAN) lor the County Attorney's Office to provide defense for PLAN in the lawsuit styled Deborah Dahlnumns V. Plan and Marcy Krumbine, Case No. 09-791S-CA . OBJECTIVE: For the Board to: (I) approve an agreement between Collier County and PLAN that authorizes the Office of the County Attorney to defend PLAN in the lawsuit styled Deborah DahImanns v. PLAN and Marcv Krumbine. Case No. 09-79l5-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida; and (2) declare that such defense serves a public purpose. CONSIDERATIONS: Marcy Krumbine, an employee of Collier County, was serving as Chairperson of the Board of Directors of PLAN when the Executive Director of PLAN, Deborah Dahlmanns was terminated. Deborah Dahlmanns was notified of the termination in a letter written by Ms. Krumbine. At the time of the termination and presently, Ms Knunbine's position was and is Director of Housing and Human Services for Collier County. Prior to this instance, other Collier County employees have served on the Board of PLAN. PLAN is a not-for-profit entity created to provide medical care for indigent Collier County residents. It operates on grant funds and donations. PLAN has indicated to the County that it has no funds to provide an adequate defense. Although PLAN secured liability insurance, pursuant to its contract with the County, the insurance company has agreed only to provide a defense for Ms Knunbine. The insurer's position is that an action on a contract of employment is excluded from coverage. The facts of this matter are extraordinarily unique and inextricably involve a County employee. A defense of PLAN is in the public interest and serves a public purpose by preserving funds for indigent health care for Collier County residents. If the Board authorizes this Office to represent PLAN, this Office will do so provided there is no conflict with the Board of County Commissioners. There may come a time, however, where the best interests of PLAN do not coincide with the best interests of Marcy Krurnbine. Should such a conflict arise, this Office will seek further direction from the Board. FISCAL IMPACT: There will be no out-of-pocket expenses, as all legal work will be done by this Office. Collier County wilI not assume any responsibility for any damage award or attorney fees and costs award against PLAN and wilI provide only a legal defense to the litigation. Under the agreement ColIier County may seek reimbursement for all. outside costs incurred by the Office of the County Attorney, including deposition costs, court reporter costs, copying, and mailing costs. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the Board approve the agreement to provide a defense for PLAN that authorizes the Office of the County Attorney to defend PLAN in the lawsuit styled Agenda ItemNo.16K3--- Agenda~~~1~ Febrli'<Il9'fl. 261tfi Page 2 of 10 Deborah Dah1manns v. PLAN and Marcv Krombine. Case No. 09-7915-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida; and to declare a public pwpose for same. PREPARED BY: Jeffrey A. Klatzkow, County Attorney 2 Agenda Item No. 16K3 March 23, 2010 Page 6 of 26 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION DEBORAH DAHLMANNS, Plaintiff, v. Case No.: 09-79l5-CA PHYSICIAN LED ACCESS NETWORK (PLAN) OF COLLIER COUNTY, INC., a Florida Non Profit Corporation, and MARCY KRUMBINE, Individually and as Chairman of PLAN Defendants. PHYSICIAN LED ACCESS NETWORK (pLAN) OF COLLIER COUNTY, INC.'S MOTION TO DISMISS AND NOTICE OF WITHDRAWAL OF PREVIOUSLY FILED ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, PHYSICIAN LED ACCESS NETWORK (PLAN) OF COLLIER COUNTY, INC., by and through its undersigned counsel pursuant to Rules 1.190(a), 1.190(c), 1.190(e), and 1.140(b)(6) of the Florida Rules of Civil Procedure and S 617.01011 et seq., Florida Statutes, and moves this Court to permit, the Collier County Attorney's Office, new counsel for PLAN, to withdraw the Answer and AffIrmative Defenses previously filed by PLAN's former counsel on November 4, 2009 and permit this amended and supplemental pleading in lieu thereof. As grounds therefore, PLAN states as follows: PRELIMINAR Y STATEMENT: I. PLAN is a not-for-profit charitable Florida corporation under Section 501 (C)(3) of the United States Internal Revenue Code and S 617.01011 et seq., Florida Statutes, and Agenda Item No. 16K3 March 23, 2010 Page 7 of 26 provides health services for uninsured residents of Collier County. PLAN is the recipient of monetary grants from Collier County for this purpose. 2. Pursuant to ~ 617.0206, Fla. Stat., PLAN operates pursuant to a set of by-laws; and has a corporate seal. [Copy of by-laws attached hereto as Exhibit "1 "]. 3. Article III, Section 3.1 of the PLAN by-laws states: "The business, affairs, funds and property of PLAN are managed by the Board, which exercises all the power and authority of PLAN and acts on all matters that may come before PLAN." 4. Article VIII, Section 8.1 of the PLAN by-laws provides: "The Chair performs such other duties and has such other powers as are stated in the By-Laws and as the Board may prescribe. " 5. On January 27, 2010, former counsel filed a Motion for Leave to Withdraw as Counsel for PLAN, but to continue as counsel for Defendant, MARCY KRUMBINE. 6. On February 9, 2010, PLAN's former counsel was permitted to Withdraw as counsel for PLAN by the Magistrate. 7. On February 10, 2010, after approval by the Collier County Board of County Commissioners, PLAN's new counsel filed a Notice of Appearance and began to review and investigate the case. 8. The investigation of the case by undersigned counsel has led to the conclusion that the initial Answer and Affirmative Defenses filed by former counsel for PLAN are invalid, and in the interest of justice, should be withdrawn and the instant Motion to Dismiss substituted. 2 Agenda Item No. 16K3 March 23, 2010 Page 8 of 26 PLAN'S MOTION TO DISMISS COMPLAINT 1. Plaintiff, DEBORAH DAHLMANNS, has failed to allege there was a duly executed and valid employment agreement presented to and approved by the PLAN Board of Directors. 2. No such duly authorized contract exists. 3. Exhibit "A' to the Plaintiff's Complaint is a mere letter signed by the Chair of the Board and the Plaintiff. 4. There is no allegation in the Complaint the alleged contract was approved by PLAN or that Defendant, MARCY KRUMBINE was duly authorized by the Board to enter into any contract. 5. There is no corporate seal on the alleged contract. 6. There is no resolution attached or any other indices of approval by the PLAN Board of Directors to enter into a written agreement with Plaintiff, DEBORAH DAHLMANNS. 7. There is no allegation in the Complaint that 9 617.0701, Fla. Stat. was complied with or a waiver 9 617.0801, Fla. Stat,. was secured by either Defendant, MARCY KRUMBINE or Plaintiff, DEBORAH DAHLMANNS. 9 617.0801, Fla. Stat., provides: "All corporate powers must be exercised by or under the authority of, and the affairs of the corporation managed under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation." 8. At best, Plaintiff, DEBORAH DAHLMANNS has only pled she entered into an agreement with the Chair, MARCY KRUMBINE, that allegation does not and could not bind PLAN. 3 Agenda Item No. 16K3 March 23, 2010 Page 9 of 26 9. With no viable or valid contract, Plaintiff, DEBORAH DAHLMANNS was terminable at will. 10. Without a contract there can be no breach of contract and PLAN should be dismissed from this lawsuit with prejudice. See Rule 1.140(b)(6) Fla.R.Civ.P. Respectfully submitted, BY: JACQUELINE WILLIAMS HUBBARD Florida Bar No. 468126 Litigation Section Chief Office of the County Attorney 3301 East Tamiami Trail, 8th Floor Naples, FL 34112 Phone: (239) 252-8400 Fax: (239) 774-0225 A TIORNEY FOR DEFENDANT PLAN CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Defendant PLAN's Motion to Dismiss and Notice of Withdrawal of Previously Filed Answer and Affirmative Defenses was furnished via regular U.S. mail, postage prepaid to: Bill B. Berke, Esq., and Patrick S. Javier, Esq., 1003 Del Prado Blvd., Suite 300, Cape Coral, FL 33990, facsimile (239) 549-3331; and Damian Taylor, Esq., 2640 Golden Gate Parkway, Suite 304, Naples, FL 34105, facsimile (239) 298-5236 on this 15th day of March, 2010. BY: JACQUELINE WILLIAMS HUBBARD, ESQ. 4 Agenda Item No. 16K3 March 23, 2010 February 9, fd~'010 of 26 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, February 9, 2010 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special district as has been created according to law and having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION in Building "F" ofthe Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Fred Coyle Jim Coletta Donna Fiala Frank Halas Tom Henning ALSO PRESENT: Leo Ochs, County Manager Michael Sheffield, Assistant County Manager Jeffrey A. Klatzkow, County Attorney Sue Filson, BCC Executive Manager Page 1 Agenda Item No. 16K3 March 23, 2010 Page 11 of 26 Item #12A AGREEMENT BETWEEN COLLIER COUNTY AND PHYSICIAN LED AREA NETWORK (PLAN) FOR THE COUNTY ATTORNEY'S OFFICE TO PROVIDE DEFENSE FOR PLAN IN THE LAWSUIT STYLED DEBORAH DAHLMANNS V. PLAN AND MARCY KRUMBINE, CASE NO. 09-7915-CA - APPROVED MR. OCHS: Yes, sir. That's approval of agreement between Collier County and Physician Led Area Network, PLAN, for the Collier -- excuse me -- the County Attorney's Office to provide defense for PLAN in the lawsuit styled Deborah Dahlmanns versus PLAN and Marcy Krumbine. And this item was moved at Commissioner Henning's request and also Commissioner Fiala's request. MR. KLATZKOW: And I have very, very short presentation. CHAIRMAN COYLE: Okay. You have three minutes. MR. KLATZKOW: I need less time than that. Leo, if can you give me a hand. MR.OCHS: Yes, sir. MR. KLATZKOW: There is a -- currently a pending litigation. The pending litigation is brought by a former employee of PLAN against the Physician's Led Access Network and Marcy Krumbine. There are three claims, two of them against Marcy, which are not the subject ofthis discussion, and one against PLAN, which is breach of contract. The breach of contract is as follows: There was a -- what is purported to be a letter agreement by PLAN, signed by Marcy Krumbine, which purports to layout an employment arrangement between PLAN and a Deborah Dahlmanns. There came a point in time where, for whatever reason, Ms. Agenda Item No. 16K3 March 23, 2010 Page 12 of 26 Dahlmanns's services were no longer wanted, and she was terminated by PLAN in a letter signed by Marcy Krumbine. During all relevant periods, Marcy Krumbine was the chairman of PLAN. The employee has stated that the termination was wrongful and is seeking damages for the, in essence, breach of contract against PLAN. The reason that my office is getting involved in this is because of the role of Marcy Krumbine as the chairman in PLAN. Marcy Krumbine, as you know, is our director of Housing and Human Resources. These are some of the emails that I pulled dealing with Marcy and PLAN. I really cannot separate her role as the director of Housing and as chairman of PLAN. She was operating PLAN through the county offices on county time, using county computers. It's a very unusual circumstance so that I don't think this will set any precedent for any other charitable organizations out there. But at the end of the day, we're involved whether we like it or not, and PLAN has asked that my office provide them legal representation. And provided that, you know, there are no conflicts -- and at this point in time I see no conflicts -- if it is the board's desire, we will be happy to step into the breach. PLAN serves a very valuable role to the community bringing services to the indigent. Doctors basically are donating their time to provide these services, and any monies that they might have -- and I'm not even sure they have any monies for this -- are better served going towards the indigent. CHAIRMAN COYLE: Okay, thank you. Commissioner Henning? MR. KLATZKOW: So what's the difference between Collier County Housing Authority and PLAN? They still provide a service. My question to the county manager, if one of your employees, or -- I mean, and in this case, working for a not-for-profit on -- in the Agenda Item No. 16K3 March 23, 2010 Page 13 of 26 county, is that part of our job description? MR. OCHS: Commissioner, I will put up here the job classification for the position of Housing and Human Services director. There is a reference under the essential functions of the job. The third page of that listing of such essential functions reads -- in part here it says, continue to collaborate with the Physician Led Access Network, PLAN, to ensure success of the physician-donated services as part of the safety net for healthcare services for the uninsured. And it goes on to say also, implement health information technology grant with PLAN, local clinics, and hospitals for the sharing of patient data and information. So in answer to your question, the job description did not require that Ms. Krumbine operate as a member of the board or as chairman of the board, but it certainly did indicate that she was to work collaboratively with that organization. And I believe that, in good faith, she stepped in and was trying to help that organization succeed, in this particular case, stepping up and serving as a member of the board in the executive committee in this recruitment. COMMISSIONER HENNING: Is the requirements to hire and fire employees of PLAN? MR.OCHS: I believe that that was a delegated responsibility and authority that came out of the PLAN board of directors. And I'm going to turn to Mr. Klatzkow. I don't want to get into the legal interpretation, sir. But my understanding of what I've read is that there was a three-member executive committee that was authorized by the PLAN board to go out and recruit and retain an executive director for the organization. COMMISSIONER HENNING: Well, you know, I guess my concern is what we're -- it is setting -- precedent setting because you're saying to all the employees, if you belong to a not-for-profit and get in trouble, we'll -- we will defend you, or we'll be behind you. And that is a not-for-profit organization. No different if an employee was a Agenda Item No. 16K3 March 23, 2010 Page 14 of 26 deacon in a church and somebody got hurt in a church, that deacon would be sued as part of the church. And we have so many organizations in Collier County that does good for the county. Depends on your aspect of what they do. We can't be all to all, and we should not be because we're using tax dollars; as Commissioner Halas would say, limited tax dollars. And we're getting out of the realm of our goals and missions. It's plain and simple. CHAIRMAN COYLE: Okay. Commissioner Fiala? COMMISSIONER FIALA: Yes. I take a different tack on this, and that is, that in -- the PLAN works with all of the people that Marcy is striving to help, and that's why we have supported her efforts in that cause. Possibly -- possibly her chairmanship could have done -- been addressed a little bit differently, but I don't think she ever thought that there was a problem at the time or she wouldn't have done that. I believe that since then she's dropped off that board; is that the case? MR.OCHS: Yes, ma'am. Yes, ma'am. MR. KLATZKOW: From my understanding, yes, ma'am. COMMISSIONER FIALA: Yes. So I wanted -- that was the reason that I wanted to pull it was just to state that for the record. She wanted to make sure that there was no conflict of interest. And being that there was even a hint of it or even thought -- people would think that, she wanted to make sure to drop off. But in this case, I -- I believe that our county attorney should support PLAN. This is money that could be going to people who have health problems who need this organization, and I don't think we should stop it. I think that we have to do everything that we can to support their efforts but make sure we do it legally and within our powers. CHAIRMAN COYLE: Commissioner Coletta? Agenda Item No. 16K3 March 23, 2010 Page 15 of 26 COMMISSIONER COLETTA: Yes, thank you. The -- I got to -- the way I feel about this is that PLAN is an exception to the rule. Commissioner Henning's right, we can't be everything to every organization out there that's nonprofit; however, PLAN is a nonprofit that has been created under -- indirectly under the Collier County Commission that's been before us many times. We've endorsed them. We've made their legislative objectives part of ours in the past. There's many issues here that marries us to this particular thing. We could see a public benefit, and it's the right of this commission to be able to make judgment calls of a public benefit one way and possibly not the other way. In the case of PLAN and to try to keep it going forward, I totally endorse this agenda item. CHAIRMAN COYLE: Thank you. Commissioner Halas? COMMISSIONER HALAS: This PLAN group has an awful lot of visibility even up in Washington, D.C., because they see that the medical health that is needed for the people who are not as fortunate as we are, is working, and it's working very favorably and it's cost effective. It keeps people out ofthe emergency rooms and, therefore, I think that Marcy Krumback (sic) worked -- was the chair and she had the support of the board in the direction that she moved, and I, therefore, think that we need to support her. CHAIRMAN COYLE: Commissioner Henning? COMMISSIONER HENNING: Did the Board of County Commissioners create PLAN? MR. KLATZKOW: No. COMMISSIONER HENNING: So that was a misstatement. We did not create a not-for-profit organization, just so the public knows. CHAIRMAN COYLE: Okay. Now, I'd like to make a statement concerning this. Marcy Krumbine was apparently performing in this position as Agenda Item No. 16K3 March 23, 2010 Page 16 of 26 the chairman of the board of this organization with the knowledge of her employer -- MR. OCHS: Yes, sir. CHAIRMAN COYLE: -- the county manager or county government. I do not think we need to hang her out to dry. She does good work, she helped PLAN do a lot of good things, and her efforts were oriented toward benefiting the people of the community. Having said that, it's my very, very strong feeling that under no circumstances should we ever have a government employee working for a govern- -- organization that also accepts and spends government grants. You can't work on both sides of this issue. In my opinion, it is unethical to do so. But in talking with county attorney, there is no specific prohibition that people can't do that. But I think there should be a prohibition. You just simply leave open the opportunity for people to imagine improprieties that don't even exist, but we shouldn't even go that far. There is no need for an organization to have a government employee working in their organization, either as a board member or in any other capacity, if they're responsible for making grants to that organization and spending the money that they themselves helped approved. It's just bad policy. We shouldn't ever have it -- happen again. And I would strongly urge that the county attorney draft appropriate language that would prohibit that sort of thing in the future. But we should defend Marcy Krumbine -- defend the county against any lawsuit associated with this. MR. KLATZKOW: We're defending PLAN. Marcy Krumbine is defended by separate counsel. CHAIRMAN COYLE: Okay, very well. Then is there a motion to that effect? COMMISSIONER FIALA: Yes. Agenda Item No. 16K3 March 23, 2010 Page 17 of 26 CHAIRMAN COYLE: We have two -- wait a minute. I'm sorry. We have two -- MS. FILSON: Three. CHAIRMAN COYLE: Three speakers, okay. MS. FILSON: The first one is Margaret Eadington. CHAIRMAN COYLE: You may waive if you want. MS. EADINGTON: I'll waive, as I have spoken to you prior to this. CHAIRMAN COYLE: Okay. MS. FILSON: The next one is Dr. Joan Colfer. DR. COLFER: And I'll also waive my testimony. Thank you. CHAIRMAN COYLE: Okay. Thank you. MS. FILSON: And the third one is Damian Taylor. MR. TAYLOR: I'll waive as well. Thank you. CHAIRMAN COYLE: Thank you very much, Mr. Taylor. And with that, there -- is there a motion? COMMISSIONER FIALA: Yes, I'd like to make a motion -- by the way, you hit the nail right on the head when you said that. You're absolutely right, and I think that's the crux of everything that I was thinking as well. Yes, I make a motion that we approve the agreement to provide a defense for PLAN that authorizes the Office of the County Attorney to defend PLAN in the lawsuit now pending in the circuit court. MR. KLATZKOW: And do you declare that there is a public purpose to this, ma'am? COMMISSIONER FIALA: And that there is a public purpose. And also I'd like to add to that that we ask you, County Attorney, and the county manager, to draft up some type of a resolution that none of our employees will ever serve on a board, any other boards outside of the county that then asks the county for money or applies for grants and then approves grants. MR.OCHS: Yes, ma'am. Agenda Item No. 16K3 March 23, 2010 Page 18 of 26 COMMISSIONER FIALA: Thank you. COMMISSIONER HALAS: I'll second that motion. CHAIRMAN COYLE: Okay. Motion by Commissioner Fiala, seconded by Commissioner Halas. Any further discussion? (No response.) CHAIRMAN COYLE: All in favor, please signify by saying aye. COMMISSIONER FIALA: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN COYLE: Any opposed, by like sign? COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Okay. It passes 4-1, with Commissioner Henning dissenting. Thank you very much, County Attorney. MR. KLATZKOW: Thank you. CHAIRMAN COYLE: And that brings us to the end, right? Agenda Item No. 16K3 t~~ 2A ~n~ ~ MEMORANDUM Date: February 18,2010 To: Jacqueline Hubbard, Assistant County Attorney County Attorney's Office From: Ann Jennejohn, Deputy Clerk Minutes & Records Department Re: Agreement between Collier County & Physician Led Area Network (PLAN) for the County Attorney's Office to provide defense for PLAN in the lawsuit styled Deborah Dahimanns V. PLAN and Marcy Krumbine; Case No. 09-791S-CA Attached is the original agreement referenced above, (Agenda Item #12A) approved by the Board of County Commissioners February 9, 2010. The second original agreement will be held in the Minutes and Records Department as part of the Board's official record. If you have any questions, please contact me at 252-8406. Thank you. Attachment (1) Agenda Item No. 16K3 March 23, 2010 Page 20 of 26 12A ,,'1 AGREEMENT BETWEEN COLLIER COUNTY AND COLLIER WE CARE. INC. aka PHYSICIAN LED ACCESS NETWORK (pLAN) OF COLLIER COUNTY This Agreement ("Agreement") is made by and between the Board of County Commissioners of Collier County, Florida (the "County"), and the Collier We Care, Inc. aka Physician Led Access Network of Collier County ("PLAN"), a Florida not-for-profit corporation, which has been detennined to be exempt from federal income taxation under section 501(c)(3) of the Internal Revenue Code of 1986, as amended ("Code") and not to be a private foundation within the meaning of section 509(a) of the Code. WHEREAS, an action for declaratory relief and judgment has been filed in the Twentieth Judicial Circuit, in and for Collier County, styled Deborah Dahlmanns v. PLAN and Marcv Krwnbine, Case No. 09-7915-CA ("Lawsuit"), in which County employee Marcy Krumbine has been sued individually in her capacity as Chairperson of the Board of Directors of PLAN; and WHEREAS, PLAN has a contract with the County through August 31, 2010 [see copy attached as Exhibit "An] to perfonn medical services for uninsured Collier County residents; and WHEREAS, under said contract, PLAN secured liability insurance; however, PLAN's insurer has declined to pay PLAN's legal expenses related to the Lawsuit because the Lawsuit accuses PLAN of breach of contract; and WHEREAS, the Lawsuit alleges, inler alia, a County employee, Marcy Krumbine, tenninated an employee of PLAN without cause, precipitating the Lawsuit; and WHEREAS, ~ 3.2 of PLAN's By-Laws require its Board of Directors to include one representative from Collier County Government and Marcy Krwnbine was that member at all times material hereto; and Agenda Item No. 16K3 M~ie~ i~g WHEREAS, Marcy Knunbine's Job Description requires her "to collaborate with PLAN to insure success of the physician donated services as part of the safety net for health care services for the uninsured,"; and to "Implement Health Information Technology Grant with PLAN..."; and WHEREAS, PLAN has alleged it has insufficient funds for its defense of the Lawsuit; and the County does not wish to have its grant funds used for litigation expenses; and WHEREAS, the Collier County Attorney's Office is willing to defend PLAN and such defense will be conducted with an attorney from the County Attorney's Office ("County Attorney''), and thus, will not affect the grant award to PLAN; and WHEREAS, this in-house defense of the Lawsuit wilJ aid PLAN in its delivery of medical care to uninsured Collier County residents; and WHEREAS, the County has determined this defense serves a public purpose; and NOW THEREFORE, in consideration of the premises contained herein, the Collier County Board of County Commissioners agrees to assign the County Attorney to provide a defense in the Lawsuit for PLAN as set forth below: ARTICLE 1 TERM AND TIME OF PERFORMANCE ] .1 The term of this Agreement shall be until the conclusion of the Lawsuit, unless terminated earlier in accordance with the provisions of this Agreement or at the discretion of the County Attorney. In the event the term of this Agreement extends beyond a single fiscal year of County, the continuation of this Agreement beyond the end of any fiscal year shall be subject to the availability of funds from County in accordance with Chapter ]29, Florida Statutes. 2 Agenda Item No. 16K3 March 23, 2010 r~xf 26 1 1.2 Time shall be deemed to be of the essence in performing the duties, obligations and responsibilities of this Agreement. 1.3 Any amendments, alterations, variations, modifications or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing, duly signed by both parties hereto, and attached to the original of this Agreement. 1,4 In the event PLAN is found liable in the Lawsuit, the County does not assume any responsibility for any damage awards or attorneys' fees and costs awards against PLAN and will provide only a legal defense to the Lawsuit. The County may seek reimbursement from PLAN for all outside costs relating to the Lawsuit, such as court costs, court reporter costs, copying, and mailing. ARTICLE 2 TERMINATION 2, I This Agreement may be terminated by either party for cause upon five (5) days notice or by either party for convenience upon no less than ten (10) days advance written notice. 2,2 Termination of this Agreement for cause shall include, but not be limited to, failure, in the opinion of the County Attorney, to cooperate with the County Attorney, or failure to continuously perform in a manner determined by the County Attorney to meet or accomplish the objectives of the County Attorney in the Lawsuit. The County Attorney may also terminate this Agreement if he determines, in his sole discretion, that a conflict exists with his primary client, the Board of County Commissioners, as well as the County Administrator or County Staff. 2.3 Upon notice by either party to terminate, the County shall refrain from performing further services or incurring additional expenses under the terms of this Agreement. 3 Agenda Item No. 16K3 March 23, 2010 Page 23 of 26 12A t 2.4 PLAN acknowledges and agrees that Ten Dollars ($10) of compensation will be paid by the County, the adequacy of which is hereby acknowledged by PLAN, as specific consideration to PLAN for the County's right to terminate this Agreement for convenience. 2.5 The County's obligations to PLAN as provided for hereunder shall cease upon termination, except for participating in an orderly and professional transfer of such responsibilities and files or copies of files to PLAN or its designee, ARTICLE 3 REVIEW AND INSPECTION OF RECORDS 3.1 The County shall have the right to review all books and records of PLAN pertinent to the Lawsuit as determined by the County Attorney. PLAN shall preserve and make available at reasonable times for examination, review, and copying by the County Attorney, all PLAN Board minutes, memoranda, by-laws, financial records, supporting documents, and, any other documents deemed pertinent to the Lawsuit by the County Attorney, upon request within 2 days of request, by the County Attorney; whether verbal or written, 3.2 The County and PLAN shall comply with the Florida Public Records Act (Chapter 119, Florida Statutes) if determined to be applicable to PLAN's records, however, no confidentiality or non-disclosure requirement of either federal or state law shall be violated by the County or PLAN, ARTICLE 4 INDEMNIFICATION 4.1 PLAN acknowledges and agrees that an additional Ten Dollars ($]0,00) of compensation paid by the County, the adequacy of which is hereby acknowledged by PLAN, is given as specific consideration to PLAN so that PLAN shall at all times 4 Agenda Item No. 16K3 March 23, 2010 Page 24 of 26 12A4" hereafter indemnify, hold hannless and; at the County's option, defend or pay for an attorney selected by the County to defend the County, its officers, agents, servants, and employees against any and all claims, losses, liabilities, and expenditures of any kind, including attorney fees, court costs, and expenses, caused by negligent act or omission of PLAN, its employees, agents, servants, or officers, or accruing, resulting from, or related to the subject matter of this Agreement including, without limitation, any and all claims, demands or causes of action of any nature whatsoever resulting from injuries or damages sustained by any person or property, The provisions of this section shall survive the expiration or earlier termination of this Agreement. To the extent considered necessary by the County, any sums due PLAN under this Agreement may be retained by the County until all of the County's claims for indemnification pursuant to this Agreement have been settled or otherwise resolved; and any amount withheld shall not be subject to payment of interest by the County, ARTICLE 5 OWNERSHIP OF DOCUMENTS 5.1 Any and all original or copies of reports, photographs, surveys, and other data and documents provided, requested, received, or created in connection with the Lawsuit and placed in the possession of the County shall remain the property of the County. ARTICLE 6 NOTICES 6.1 Whenever either party desires to give notice to the other, such notice may be in writing, sent by registered, certified, or regular United States Mail, postage prepaid, return receipt requested, or by hand-delivery, addressed to the party for whom it is intended at the place last specified; or by facsimile transmission. The place for giving notice shall remain the 5 Agenda Item No. 16K3 March 23, 2010 r!~Of2q same as set forth herein until changed in writing in the manner provided in this section. For the present, the parties designate the following: FOR COLLIER COUNTY; Jeffrey A, Klatzkow, County Attorney Collier County Government Center Administration Building, 8th Floor 3301 Tamiami Trail East Naples, Florida 34112 Telephone: (239) 252-8400 Fax: (239) 774-0225 FOR PLAN; Physician Led Access Network (PLAN) of Collier Comty, Inc. 1012 Goodlette-Frank Rd., Suite #201 Naples, Florida 34101 Palll Mitellell, M.D., Seara 'liee CilaiFRlIlB Marl!aret Eadinlrton. Board Vice-Chairman Telei*leae: (239) 134 gQOS Fan: (239) 417 8999 Teleohone: (2391435-7727 Fax: (239) 435-1297 ARTICLE 7 MISCELLANEOUS 7.1 COMPLIANCE WITH LAWS The parties shall comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in performing its duties, responsibilities, and obligations related to this Agreement. 7.2 APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the Stale of Florida. Venue for litigation concerning this Agreement shall be in Collier County, Florida. 6 Agenda Item No. 16K3 March 23, 2010 Page 26 of 26 12A 7.3 INCORPORATION BY REFERENCE The truth and accuracy of each "Whereas" clause set forth above is incorporated herein and acknowledged by the parties. ."::\\~~nc ";;- ".,"~. ....:.....~'.' (',.., '. A TIES!::."" .... ....':-... DWIGHt'E;B@!\ t.1:E~ ..~ '. ~..;~.~'~ ,~; ~ ~ ~.. t . w, County Attorney 8T A TE OF FLORIDA COUNTY OF COLLIER BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: ~W. ~ FRED W. COYLE, CH N PHYSICIAN LED ACCESS NETWORK (PLAN) BY:~~ feto(,.'...~, ~ Its: ckaJ- The foregoing Agreement was acknowledged before me this r1!1.. day of p,.It:n."y 2010, by (\'IMj4'.t f~~;'" as of PLAN. H~persona1~ ~ or produced Ilem'~ ~ ~-41D OllIe ., ....\~-\D Roc'd v ~ j as identification. /N)h1 t{ ~ sfgnature of Notary Public ~" L, 61 t!i1 Name of Notary Public typed, printed or My Commission Expires: .-L a.EN IIY CC11118IlICN , lID IIIl31S7 ~~~ 7