By Dan Christensen
Former Department of Children & Families Secretary Bob Butterworth lobbied heavily this year to persuade his former agency to award his nonprofit company — and its for-profit partner — a $44 million-a-year state management contract.
Butterworth, however, is not registered in Tallahassee to lobby state officials.
The Broward Behavioral Health Coalition, Butterworth’s group, won the competition in March to become Broward’s new “managing entity for substance abuse and mental health services.”
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Now, after months of delays caused by an unsuccessful bid protest, Butterworth is negotiating final contract terms with DCF. A signed deal is expected by Nov. 1.
As president of Broward Behavioral, Butterworth led the company’s campaign to secure the lucrative, multi-year contract. Its bid was chosen over one made by Partnership for Community Health, a group of established Broward healthcare providers.
State procurement records obtained by BrowardBulldog.org show Butterworth assembled, signed and submitted a lengthy bid proposal on behalf of Broward Behavioral and its partner, Miami-based Concordia Behavioral Health.
Butterworth, a former Florida attorney general and Broward County sheriff, later participated in pre-award negotiations that included direct correspondence with DCF’s lead negotiator in which Butterworth advocated the merits of “BBHC/Concordia team’s” cost-savings proposal.
One state ethics expert said Butterworth, a Democrat and also a former judge and prosecutor, might have taken advantage of holes in the state law regulating lobbyists.
“It’s like Swiss cheese,” said Philip Claypool, the retired executive director and general counsel for the Florida ethics commission.
Florida law broadly defines lobbying as “seeking, on behalf of another person, to influence an agency with respect to a decision of the agency in the area of policy or procurement.”
But its definition of a lobbyist is narrower, turning on questions of a person’s employment, pay and job description.
“I think there is an argument on both sides,” said Claypool. “The question would have to be determined by knowing who paid whom, for what, and when, as well as what communications were made, when and under what circumstances.”
The Florida ethics commission can investigate alleged failures to register or to submit a required compensation report. It does not initiate probes, but responds to sworn complaints. Violators may be reprimanded, censured or prohibited from lobbying for up to two years. They can also be fined up to $5,000.
Butterworth declined several requests to discuss his push to obtain the DCF contract and explain why he is not registered to lobby executive branch agencies.
Butterworth, who also serves as Broward Behavioral’s chairman, told Sun-Sentinel columnist Michael Mayo in June that Concordia — owned by Miami businessman Carlos Saladrigas — was paying him as both a lawyer and a lobbyist.
That potentially conflicting relationship is not disclosed in the proposal Broward Behavioral submitted to DCF, an agency that Butterworth ran from January 2007 to August 2008.
Butterworth’s financial arrangement with Broward Behavioral also is not discussed in the proposal documents. Company bylaws allow officers to be paid “reasonable compensation for their services.”
Nova Southeastern University law and legal ethics professor Robert Jarvis said Butterworth should have registered.
“We say we take seriously Government in the Sunshine. So having to register as a lobbyist is just part and parcel of that effort to make government as transparent as possible,” Jarvis said.
The idea of using managing entities to privatize oversight of state substance abuse and mental health services was a DCF initiative under Butterworth, according to department documents.
The idea: to save millions of dollars in expenses that can be redirected to improving care in a state where such government-funded services have long lagged the rest of the nation.
In 2007, DCF held a public meeting to hear comment on “the role and functions of a managing entity” in advance of a planned procurement in southeast Florida, records say.
Last fall, DCF Secretary David Wilkins announced an “intent to negotiate” for the job of managing entity for Broward.
He said he expected “a significant number” of qualified nonprofit organizations to submit sealed bids. But there were only two bidders: Broward Behavioral and the Partnership for Community Health.
The Partnership was ranked higher by six of the state’s eight evaluators.
Broward Behavioral was deemed to be “nonresponsive” because it did not include required paperwork to demonstrate its financial stability.
Nevertheless, as DCF general counsel Marion Drew Parker has put it, a “wrinkle” in the competitive process allowed DCF to scrap the idea of sealed bids.
Negotiations started over, now with just a single DCF employee — instead of a committee — charged with recommending a winner, and Broward Behavioral came out on top.
The deal was delayed when the Partnership filed a 22-page bid protest alleging, among other things, that the contract award was illegally steered to Butterworth’s group.
DCF quickly denied the protest. The Partnership sued, but an appeals panel dismissed the case in August because the Partnership had not posted the required protest bond
The underlying corruption allegations were not addressed. A spokesman for DCF has denied any impropriety.
Broward Bulldog reported last week that DCF awarded the contract to Butterworth’s group without required rules in place to promote public scrutiny.