IN THE SUPREME COURT OF FLORIDA

CASE NO.

STATE of FLORIDA ex rel, 0 SEAN J. HELLEIN, and

SEAN J. HELLEIN, Individually

Petitioner/Relator,

Respondent.

7HO~IVEO "'11'\$ O. HALL

OCT 01 2010

0" CL:K, SUPREME COURT

~

v.

IRAWILLIAM "BILL"McCOLLUM; Jr'J Attorney General, State of Florida

____ ~--~~------~------_I

PETITION FOR WRIT OF QUO WARRANTO

Petitioner, Sean 1. Hellein ("Petitioner"), for the benefit of the citizens of the

State of Florida and individually in his capacity as the Plaintiff in a False Claims

Act Complaint brought for the benefit of the United States and the citizens of the

State of Florida, respectfully petitions this Court for a Writ of Quo Warranto

directed to Respondent Bill McCollum, in his capacity as the Attorney General of

the State of Florida and head of Florida's Medicaid Fraud Control Unit

(HFMFCU")~

1

Issuance of an immediate Writ is necessary to prevent Attorney General

McCollum from unconstitutionally exercising decision making authority in matters

relating to WellCare Health Plans, Inc. ("WellCare"), due to irreconcilable

conflicts of interest that result in a risk of actual bias in the decision making

process. The frailties of human nature make it impossible for McCollum to carry

out his constitutional duty to fairly decide on WellCare matters, including a

proposed settlement resolving hundreds of millions of dollars in Medicaid fraud

liability. McCollum's conflict is largely based on the fact that McCollum and

other receptive members of the Republican Party were given millions of dollars in

campaign contributions by WellCare-some admittedly illegal.

While Petitioner understands that Quo Warranto relief must be based upon

constitutional grounds, the issue is best framed in a certain historical and factual

context. Petitioner therefore requests this Court's indulgence and review of the

following background facts and argument in support of this Petition.

I. NECESSARY BACKGROUND FOR UNDERSTANDING THE RELIEF REQUESTED

The basic facts underlying this Petition involve a massive Medicaid fraud

perpetrated by WellCare. It has been revealed that the State of Florida alone has

been defrauded of staggering sums in excess of $400 million during the time

2

period from 2002 through 2007.1 This fraud was discovered and exposed by the

Petitioner and investigated by the Department of Justice ("DOJ") through the

Petitioner's great personal risk and sacrifice in wearing personal audio and visual

recording devices ("wires") for some eighteen months under the direction and

guidance of the FBI and other investigating agencies. The information seized by

the Petitioner was the basis for a Federal False Claims Act Complaint filed by the

Petitioner for the use and benefit of the United States of America and the State of

Florida in June of 2006. The case is styled: United States of America, State of

Florida et al., ex rel. Sean J. Hellein v. WellCare Health Plans, Inc., et al., Case

No.: 8:06-CV-OI079- T-30TGW, United States District Court for the Middle

District of Florida. Petitioner's Complaint was amended as facts were discovered

and Petitioner's Seventh Amended Complaint ("Complaint") was recently

unsealed by order of the Federal District Court for the Middle District of Florida?

The Complaint details a litany of corporate greed, misconduct, fraud and

theft so cruel and pervasive that it hardly seems possible to a reader with any

semblance of conscience, reaching a level of psychopathy. Hundreds upon

hundreds of premature infants, terminally ill patients and hospice-care patients

1 App. Ex. A, Paragraph 9.

2 A copy of the Seventh Amended Complaint in that action is attached as App. Ex. B. The Complaint details approximately twenty schemes that assisted WellCare in defrauding the State of Florida in excess of $400 million. The exhibits to the Complaint are not attached because all remain sealed, with the exception of the Deferred Prosecution Agreement, which is attached.

3

were illegally dropped from healthcare coverage. Bonuses and a celebratory

dinner at Bern's Steakhouse were given for relinquishing terminally ill babies,

hospice patients and senior citizens. WellCare falsified records, hid overpayments

in Medicaid reimbursements, illegally influenced state and federal officials and

regulators and fraudulently created a financial windfall for itself at taxpayers'

expense. Well Care admitted to many of the fraudulent and criminal acts alleged

by Petitioner by consenting to the allegations contained in a federal information to

resolve possible criminal charges. To do so, WellCare irreversibly admitted their

criminal acts and entered into a Deferred Prosecution Agreement with the United

States, which provided for $40 million in restitution and $40 million in forfeiture

penalties. 3 However, the agreement only dealt with three of the twenty claims for

civil liability alleged in the Complaint.

Despite the fact that the Petitioner's original complaint was filed over four

years ago, 'as of the date of this Petition, the undersigned has been specifically

told upon request that no determination has been made by the Agency for Health

Care Administration ("AHCA,,)4 or any other state agency as to the amount of

money actually stolen from the taxpayers of Florida by WellCare. In fact,

Petitioner has been informed by no one as to the actual amount of loss to the State

3 A copy of the Deferred Prosecution Agreement is attached as App. Ex. C.

4 AReA is the entity designated under Florida law to administer and oversee Florida's Medicaid Program. § 409.902, Fla. Stat. (Supp. 2009).

4

of Florida. Based on his. position as a senior financial analyst with full access to

WeUCare's financial records, Petitioner has indicated that the true amount is in

excess of $400 million."

Notwithstanding the fact that there has been no information released

regarding the amount of money actually stolen by Well Care, in late June 2010,

Well Care announced that it had reached a tentative settlement of Petitioner's

Complaint for the total sum of $137,500,000, barely one third of the amount

believed to have been stolen.6 The DO] has never denied WellCare's

proclamation. Petitioner has learned that settlement documents are in the process

of 'being prepared to effectuate the proposed settlement, which will then be

submitted to McCollum for approval and sign-off by the State of Florida.7

Despite WellCare's status as a public company with a $1.24 billion market

cap, $6.8 billion in income last year and $120 million in profits from the last

5 App. Ex. A, Paragraph 9.

6 SEC, Form 8-K WellCare Health Plans, Inc., http://www.sec.gov/Archives/edgar/ datal1279363/ 00012793631 0000048/fonn8- k.htm (last visited Sept. 29, 2010).

7 It is virtually certain that Attorney General McCollum will approve the proposed settlement in light of the fact that McCollum has previously indicated to the undersigned's office his willingness to settle the estimated $400 million stolen by WellCare for a mere $60 million. The reasons for the increase in the amount of the proposed settlement from $60 million to $137.5 million have nothing to do with any efforts on the part of McCollum, but rather were the result of Petitioner's efforts.

5

reported quarter alone," McCollum does not know the loss sustained by the

taxpayers and is therefore unable to determine whether the proposed settlement is

fair, reasonable or adequate to the citizens of Florida, as required by law."

Additionally, McCollum has consistently refused to independently investigate,

bring civil or criminal charges or otherwise act with the authority vested in him as

the chief law enforcement officer of Florida.

The facts detailed in this Petition reveal actual conflict, impropriety and a

risk of bias that prevents McCollum from acting objectively in the best interest of

the citizens and taxpayers of the State of Florida on Well Care matters. The facts

set forth herein constitute the "extraordinary circumstances" necessary to justify

McCollum's disqualification, including WellCare's more than $884,000 in

political contributions to or for the benefit of McCollum's 2006 campaign, two of

which were admittedly illegal. These circumstances support Petitioner's request

for the issuance of a Writ of Quo Warranto as requested herein.

8 SEC, Form 8-K WellCare Health Plans, Inc., http://www.sec.gov/Archives/edgar/ datall2793631 0001279363l0000048/form8-k.htm (last visited Sept. 29, 2010); Yahoo! Finance, WellCare Health Plans, Inc., http://finance.yahoo,comlq?s=WCG (last visited Sept. 29,2010). Although WellCare reported a substantial loss due to settlement of litigations, its actual operating profit for the first quarter of 2010 was $120 million, SEC, Form 10-Q WellCare Health Plans, Inc., http://sec.gov/ Archives/edgar/datal12793631 000I27936310000059/formIO-q.htm (last visited Sept. 29, 2010).

9 § 31 U.S.C. 3730(c)(2)(B) (Supp. 2009).

6

II. BASIS FOR INVOKING JURISDICTION

This Court has authority to issue a Writ of Quo Warranto under article V, section 3(b)(8) of the Florida Constitution and Rule 9.030(a)(3), Florida Rules of Appellate Procedure. This Petition is properly filed as an original action because Respondent is a state officer in two capacities (Attorney General and head of FMFCU) who Petitioner claims is exercising or about to exercise constitutional powers in a manner contrary to law, including article II, section 8(h) of the Florida Constitution. The purpose of section 8(h) is to require state officers "to avoid conflicts of interest" in exercising their duties as well as preventing them from engaging in acts that could be construed as failing to "preserve public trust."

This Court has long held that quo warranto is an appropriate means of enforcing the public's right to have government officials exercise their powers in a constitutional manner. See Martinez v. Martinez, 545 So. 2d 1338, 1339 n.3 (Fla. 1989); State ex rei. Butterworth v. Kenny, 714 So. 2d. 404, 411 (Fla. 1998), receded from on other grounds, Darling v. Florida, 35 Fla. L. Weekly S389 (Fla. July 1, 2010); State ex rel. Merrill v. Gerow, 85 So. 144, 145 (Fla. 1920) (quo warranto is a proper means to challenge a public officer's attempt to exercise his powers or privileges derived from the State); Chiles v. Phelps, 714 So. 2d 453,456 (Fla. 1998) (members of the public seeking enforcement of rights they are entitled to or constitutionally guaranteed may be brought through the remedy of quo

7

warranto). These cases support this Court's jurisdiction to act and issue the writ to

McCollum in his capacity as head of FMFCU.

Quo warranto is also a proper remedy for contesting the authority of public

officers and agencies to take action in their official capacities. Crist v. Florida

Association of Criminal Defense Lawyers, 978 So. 2d 134, 138 n.3 (Fla. 2008).

This Court has specifically held that "if the power and authority of an assigned

state attorney is to be tested, it should be done in direct proceedings by quo

warranto." Hart v. State, 198 So. 120, 123-25 (Fla. 1940); State ex rel. Christian

v. Austin, 302 So. 2d 811, 818 (Fla. 1st DCA 1974), rev'd on other grounds, Austin

v. State ex rel. Christian, 310 So. 2d 289 (Fla. 1975).

Petitioner has special standing here. Petitioner has filed his Complaint for

the use and benefit of the State of Florida and the Florida Attorney General has not

yet intervened. The False Claims Act, 31 U.S.C. § 3730(d), also gives Petitioner,

as a Relator, a unique personal and financial interest in the outcome of the False

Claims Act case. Even absent this special standing, Petitioner has standing here as

a citizen of the State of Florida. In regards to quo warranto proceedings

challenging acts by the Attorney General, this Court has long held that:

it is well settled that when enforcement of a public right is sought, the people are the real party to the cause. The Relator need not show that he has any real or personal interest in it. It is enough that he is a citizen and interested in having the law upheld.

8

State ex rel. Pooser v. Wester. 170 So. 736, 738 (Fla. 1936).

Petitioner believes this case to be a case of first impression in this Court.

This Court has held that because a writ of quo warranto is a remedial as well as a

. prerogative writ, it may be extended to new situations and this Court has permitted

its use on the theory that the law will not permit a wrong without a remedy. State

ex rei. Watkins v. Fernanadez; 143 So. 638 (Fla. 1932); State ex rei. Bauder v.

Markle, 142 So. 822 (Fla. 1932); Belle Island Inv. Co., Ltd. v. Feingold, 453 So. 2d

1143, 1146 (Fla. 3d DCA 1984). This Court has held that quo warranto is

particularly well suited to situations where the functions of government would be

adversely affected absent an immediate determination by this Court.lO See

Dickinson v. Stone, 251 So. 2d. 268, 271 (Fla. 1971),

The criteria for issuance of a writ of quo warranto are met here.

10 At least one Florida case, which Petitioner believes to be inapplicable, suggests that before a petitioner brings a quo warranto action on behalf of the citizens of the state, it must first request the Attorney General do so and be turned down. See State ex rel. Christian v. Austin, 302 So. 2d 811, 813 (Fla. 1st DCA 1974), rev'd on other grounds, Austin v. State ex rel. Christian, 310 So. 2d 289 (Fla. 1975). However, under these circumstances, that would be asking the Attorney General to seek a writ against himself. If this Court determines that Christian is applicable, then Petitioner should be relieved of this burden as the law does not require Petitioner to perform a "fools errand" to have access to the relief requested here. See NEC Corp. & HSX Supercomputers, Inc. v. U.S. Dep't a/Commerce, 967 F. Supp. 1305, 1306 (Ct. Int'I Trde 1996). The lack of a need to make any further requests of Attorney General McCollum is obvious in that the undersigned counsel sent a letter to McCollum, dated June 30, 2010, advising him that the proposed settlement was improvident and it should be withdrawn. See App. Ex. D. McCollum took no action.

9

III. STATEMENT OF THE FACTS

Petitioner is a citizen of the State of Florida and the Relator in a pending .

Federal False Claims Act case against WellCare, a New York Stock Exchange

company with a $1.24 billion market cap, $6.8 billionll in income last year and a

predicted 2010 adjusted gross income of $2.05 to $2.20 per share.12 WellCare

services approximately one-third of Florida's Medicaid population. 13

A. McCollum's Official Capacity and Duties

Respondent McCollum is the Attorney General of the State of Florida. As such,

he carries the following responsibilities:

(1) He is the state's chief law enforcement officer. Art. IV, § 4(b), Fla.

Const.;

(2) He is a member of the Governor's cabinet. § 16.01(3), Fla. Stat. (Supp. 2009);

(3) He is charged with representing the State of Florida in all litigation matters including those covered in the Complaint. §§ 16.01(4)-(5), Fla. Stat. (Supp. 2009);

11 SEC, Form 10-K WellCare Health Plans, Inc., http://www.sec.gov/Archives/ edgar/datal1279363/00012793631 000001 O/forml Ok.htm (last visited Sept. 29, 2010).

12 Well Care, WellCare Reports Second Quarter 2010 Results, http://ir.wellcare. com!phoenix.zhtml?c=176521&p=irol-newsArtic1e&ID=1457877&highlight= (last visited Sept. 29, 2010).

13 SEC, Form 10-K WellCare Health Plans, Inc., http.z/www.sec.gov/Archivee/ edgar/datal1279363/000127936310000010/formlOk.htm (last visited Sept. 29, 2010).

10

(4) He is the head and ultimate decision maker of the FMFCU. The FMFCU· has been a part of the Attorney General's Office since July 1994.14 The FMFCU is the designated Florida agency charged with prosecution of Medicaid and health care fraud of the type described in the Complaint and the resolution of such matters. § 409.920(9)(a)~ Fla. Stat. (Supp. 2009).

B. McCollum's Background in Republican Party Leadership and WellCare's Influence

Attorney General McCollum is a long time member of the Republican Party.

He served as a United States Congressman for twenty years, including three terms

as Vice Chairman of the House Republican Conference. IS He has been heavily

involved in fundraising for Republican causes and served as the Florida Chairman

for Rudy Giuliani's presidential campaign in 2008.16

C. McCollum's Long Time Commitment and Support of Health Care Providers and Private Insurers

Throughout the course of his political career, McCollum has been a staunch

supporter of private health insurance companies and health care providers. He has

relied on these groups as valuable constituents and contributors and the quid pro

quo is obvious when viewed in light of the facts. While in Congress, McCollum

14 Florida Attorney General, http://myfloridalegal.com/(last visited Sept. 27,2010) (containing numerous press releases referring to actions taken by "Mcf.ollum's Medicaid Fraud Control Unie).

15 Nat'l Ass'n of Att'ys Gen., Bill McCollum, http://www.naag.org/billmccollum.php (last visited Sept. 22, 2010).

16 Anthony Man, Rick ScottDoesn't Show for Joint Appearance with Bill McCollum, SUN-SENTINEL, Aug. 20, 2010.

11

voted no less than eight times to cut Medicare'" and also voted to raise the age for

eligibility to receive Medicare medical benefits and Social Security." When these

efforts to direct business and revenues to his private insurer contributors failed, he

voted to privatize Medicare.19

McCollum's penchant for assisting his health care constituency also led him

to push for limits on malpractice suits'" and for legislative protection for

pharmaceutical companies and health-related concerns. During his House tenure,

for example, McCollum supported the makers of the prescription drug Claritin by

opposing measures that would have allowed a substitute to be used for treating

Medicare seniors. This measure alone maintained the high cost of this prescription

drug to seniors and reportedly cost Medicare and its recipients more than $11

b'll' 21

1 IOn a year.

Consistent with his staunch support of large corporate health care concerns,

McCollum personally, and in his official capacity, has long disfavored State or

Federal False Claims Act statutes and proceedings that could adversely impact

17 GovTrak, Bill McCollum's Voting Record, http://www.govtrack.us/congress/ votes.xpd?year=2000&person=400596 (last visited Sept. 23, 2010).

18 Steve Bousquet, McCollum Brings Health Care into Race for Governor, ST. PETERSBURG TIMES, Sept. 9, 2009.

19 William March, Ederly Issues Divide Candidates, TAMPA TRIB., July 7, 2000, at

1 1.

20 Jeff Kunerth, Most Often, Nelson, McCollum Disagree, ORLANDO SENTINEL, July 7, 2000.

21 Tracie Onbashian, Bill Blocks Less-Costly Competitors, SUN-SENTINEL, Jan. 17, 2000, at 23A.

12

health care providers and insurance companies. In 1998, McCollum drafted and

attempted to gain passage of what was titled the "Health Care Guidance Act.,,22

Senator Chuck Grassley criticized this effort calling it "unconscionable" and

deeming it an effort to "gut the False Claims Act" and effectively eliminate

meaningful whistleblower suits against health care companies. 23 The DOj also

opposed the bill and said that McCollum's efforts to get this legislation passed

would "fundamentally undermine our law enforcement efforts to protect the

integrity of the Medicare Trust Fund. ,,24 In an October 29, 2000 editorial, the

Tampa Tribune opined that if McCollum had been successful in passing the Health

Care Guidance Act, Columbia/HCA would have avoided having to pay a $745

million settlement under the False Claims Act.25

McCollum's history as an elected representative is clear testament to his

overwhelming support for all legislation and governmental actions advantageous to

the health care industry and his virulent opposition to anything that threatens the

immense revenues and profits of health care conglomerates such as WellCare.

22 Robert J. Havel, Mccollum Vs. Whistleblowers: Why?, ORLANDO SENTINEL, Aug. 2, 1998, at G3.

23 The full text of Senator Grassley's floor speech, "A Historical Treatise on the False Claims Act: Hearing Before the Senate," is attached hereto as App. Ex. E. 24 Havel, supra note 22.

25 Bill McCollum for U.S. Senate, TAMPA TRill., Oct. 29,2000, at 2.

13

DiTenure as Florida's Attorney General

McCollum lost his bid to be a United States Senator in 2004. From 2001 to.

2006, he was associated with "his firm," Baker & Hostetler, an Orlando law firm

that advertises a strong health care practice group and has represented major health

care providers and insurers such as Columbia/HCA. During 2006, although

1VIcCollum was unavailable to provide legal services to the firm due to his

campaign for Attorney General, they continued to pay his $240,000 annual salary." In 2006, McCollum ran and was elected as the Attorney General for the

State of Florida. While Attorney General, McCollum served as the President and

Chairman of Healthy Florida Foundation, a coalition of major health care providers

that is heavily sponsored by Blue Cross and Blue Shield.27 One of the goals of this

foundation is to preserve the private industry providing health care delivery in

Florida.

Not surprisingly, in an effort that would almost exclusively benefit private

health insurers, McCollum has most recently become the lead state Attorney

General to challenge the constitutionality of the National Health Care Plan enacted

26 Comm'n on Ethics, Statement of Financial Interests, (filed Mar. 29, 2005) (on file with author) (containing a disclosure of Bill McCollum's financial interests). 27 Nat'I Ass'n of Att'ys Gen., supra note 15.

14

by the United States Congress earlier this year. McCollum hired Baker & Hostetler to represent the State of florida and other states in this effort. 28

E. Excessive Campaign Contributions to McCollum and the Republican Party

During the time period from February 2004 to May 24, 2007, WellCare

made political contributions to the State of Florida Republican Party and state

Republican politicians totaling $2,600,000.29 This made WellCare the largest

single private political donor to state Republicans. 30 Much of this funding

occurred during the 2006 election cycle." It is important to note that WellCare

was able to accomplish this level of campaign funding via its use of what appears

to be forty-one different subsidiaries, affiliates and alter egos. Several of the

contributions made by WellCare were ultimately deemed illegal by the State

Elections Commission. Subsequently, WellCare entered into a 2008 consent

28 Democrats Ask McCollum for Records on His Outside Counsel, http://blogs.orlandosentinel.com!news_politics/201 0103/democrats-ask-mccollumfor-records-on-his-outside-counsel.html (Mar. 24, 201013:13 EST).

29 For a complete summary of contributions made by WellCare, see App. Ex. G. All summaries prepared for this Court are derived from official public records of the Division of Elections are listed in App. Ex. F.

30 Compare App. Ex. G (providing a complete summary of all contributions made by WellCare) with FollowTheMoney, http://www.followthemoney.org (last visited Sept. 29, 2010) (providing information on all donors to the Republican Party).

31 FollowTheMoney, http://www.followthemoney.org (last visited Sept. 29, 2010) (providing information on all donors to the Republican Party).

15

decree, which stated that Well Care would cease and desist making illegal-

contributions. 32

Records of the State Election Commission show that during 2006, WellCare

and its subsidiaries, affiliates and alter egos made eighteen direct contributions to

McCollum's campaign for Attorney General totaling $9,000.33 Seven of these

contributions were from out-of-state corporations, who arguably could not have an

interest in Florida elections.i" Two of the contributions were specifically found by

the Elections Commission to be illegal. 35 During the 2006 election cycle,

WellCare and its subsidiaries were the largest single private donor to the Florida

Republican Party with donations topping $875,000. This was substantially more

than the contributions made by Health Corporation of America, Blue Cross,

Bell South, TECO, Florida Power, Walt Disney Corporation, U.S. Sugar

Corporation and even the Republican State Leadership Committee. During the

same election cycle, the Florida Republican Party funded $911,000 to McCollum's

campaign.f In many cases, McCollum was funneled money simultaneously or in

close proximity to the WellCare contributions. For example, WellCare paid

$25,000 to the Republican Party on the same day the Party funded McCollum

32 See App. Ex. H, P. 2 (stating that WellCare suspended its contributions to Florida campaigns in the second quarter of 2008).

33

App. Ex. G.

341d.

35Id. at Ex. H, P. 1,4.

3G For a schedule of the dates and amounts of these contributions, see App. Ex. I.

16

$20,000 (September 26, 2006). On July 20,2006, WellCare contributed $30,000,

and from July 21 through July 26, 2006 the Party gave approximately $35,000 to

McCollum's campaign. It is not by mere coincidence that almo:SE<t:beidentical

amounts that were contributed by WellCare to the Party were then almost

simultaneously transferred from the Party to McCollum's own campaign over the

twenty-month election cycle. This is commonly referred to as "earmarking."

F. McCollum and the Republican Party's "Payback" To Well Care

As Attorney General, McCollum was in the perfect position in early 2007 to

allow him to return the favors received from WellCare and the health care

community. Less than a month after McCollum was successfully elected as

Attorney General, Well Care began to receive the benefits of its political largess to

McCollum and the Florida Republican Party.

G. The Dr. Agwunobi Appointment: Made During the Pendency of a $400 Million False Claims Act Case Against Well Care and Contemporaneous with Dr. Agwunobi's Receipt of Nearly $1 Million in Well Care Stock Profits

The first political act favoring WellCare was, in a surprise move, the

appointment of Dr. Andrew Agwunobi as Secretary of Florida's AReA by

Governor-elect Charlie Crist. This move, which occurred on December 14, 2006,

was surprising because Dr. Agwunobi had a clear and apparent conflict when he

was appointed. At the time of his selection as AHCA Secretary, Dr. Agwunobi

was a member of WellCare's Board of Directors. Dr. Agwunobi started as a

17

WellCare director in June of 2006 and was awarded 12,500 shares of WeUCare

stock. He resigned from the WellCare Board on December 13, 2006 to take the

AHeA appointment. Despite his short tenure as a board member and the inherent

conflict in his owning Well Care shares while acting as the chief state executive

responsible to oversee ARCA, Dr. Agwunobi was not asked to-nor did he-

return the WellCare stock. Instead, Dr. Agwunobi sold every share on December

14,2006. He collected and retained $995,000 from the sale."

As significant as Dr. Agwunobi's financial conflict IS the fact that

Petitioner's initial False Claims Act complaint, which alleged that WellCare had

used, and continued to use, multiple schemes to defraud ARCA of hundreds of

millions, had been pending for six months by December 2006. It is unfathomable

how Dr. Agwunobi could fairly preside over a multi-million dollar suit against his

former employer or be asked to act fairly in regulating WellCare on an on-going

basis considering his recent receipt of $1 million from the sale of the stock he

received as a result of his six months of service on the WellCare Board. Also

unfathomable is how Dr. Agwunobi could have accepted the position in the first

place when he served on the Board while WeliCare was perpetrating fraudulent

acts against AHCA-the very agency to which he was appointed as the head. On

second thought, he wasn't put there to be fair.

37 Scottrade, WellCare Health Plans, Inc., https:lltrading.scottrade.com/ quotesresearch/ScottradeResearch.aspx?symbol=wcg (last visited Sept. 13, 2010).

18

McCollum knew all these relevant facts about Dr. Agwunobi when he took

office.38 Despite knowledge of Dr. Agwunobi' s conflicts, McCollum did not

criticize or challenge the appointment of Dr. Agwunobi, seek to limit his

involvement in matters related to WellCare or challenge his later involvement in

legislation designed to save WellCare millions. McCollum's willful blindness to

Dr. Agwunobi's actions begs the question as to why McCollum did not object.

McCollum was "paid" to have "80/20 vision.,,39 McCollum himself benefited

substantially from WellCare's money and support. In retrospect, it is apparent that

Florida's Republican executive branch appointed Dr. Agwunobi and failed to

challenge his efforts toassist WellCare in a quid pro quo.

As far back as June 2006, while Dr. Agwunobi served on WellCare's Board

and immediately after his appointment as head of ARCA, the top management at

WellCare were panicking over the prospect that WellCare could be financially

ruined and that its public stock price might plummet by having to repay ARCA

$23 million in Medicaid overpayments on behavioral encounters for fiscal years

2004 through 2007.40 The overpayments were required to be timely refunded by

WellCare to the state by Florida Statute section 409.912(3)(b), also known as

38 As required by law, the Florida Attorney General was given copies of Petitioner's initial complaint, amended complaint, and certain other materials the Petitioner typically provides to the government in these circumstances. § 31 U.S.C. 3730(b)(2) (Supp. 2009); § 68.083(3) Fla. Stat. (Supp. 2009).

39 See infra P. 20-22 (discussing the 80/20 Law).

40 App. Ex. A, Paragraphs 5-8.

19

· Florida's "80/20 Law." The statute required that Well Care spend eighty percent of

the funds it received for these programs on the patient, including patient treatment

or give it back.

WellCare management wanted the 80/20 Law gone. At that time, WellCare

had previously engaged in various schemes, including the repeated filing of false

reports with AHCA, to fraudulently conceal the existence of $23 million in

overpayments owed to AHCA under the law. WellCare persisted in these

schemes. The fraudulent activity to continue to cover-up the overpayments

accelerated through December of 2006 into the beginning of 2007.41 The

acceleration began when AHCA officials began to ask pointed questions towards

the close of 2006 and early into the next year. WellCare feared past liability and

the possible destruction of future profits as a result of strict, continuing

enforcement of the 80/20 Law.42 Petitioner observed that the storm had passed by

late January 2007. Under the regimes of Dr. Agwunobi and Attorney General

McCollum, Mark Ryan, WellCare's chief in-house lobbyist, regulatory specialist

and "WellCare Soothsayer" advised management that "the matter was being

41 App. Ex. A, Paragraphs 10, 11. Petitioner has claimed the State was owed this amount for behavioral encounter overpayments since 2006. The concealment behavior and the fact that $23 million in overpayments was owed is now undisputed. On June 30,2010, WellCare admitted to the $23 million owed for overpayments. See SEC, Form lO-Q WellCare Health Plans, Inc., http://sec.gov/Archives/edgar/dataJ1279363/0001279363l0000059/formIO-q.htm (last visited Sept. 29, 2010).

42 App. Ex. A, Paragraph 8.

20

· . handled" and that he had "great confidence" the 80/20 Law would be "going

away,,,43 One can imagine the exchange between employees at WellCare:

Employee: Well Care Rep, are you sure it's going togo away? WellCare Rep: Don't worry, I told you those 'political contributions' would get the job done. It's going to happen Sunday evening at 9:38 p.m. when everybody's home watching Desperate Housewives. Employee: WellCare Rep, you're the best lobbyist we've ever had. You're expensive, but damn good. You got the right contacts and you know how to make things happen ($$$$).

Ryan was like a little kid who couldn't wait to tell his mommy that he hit a

home run; he could not wait to talk about it on January 26, 2007. Following

Ryan's statements, it became dear that WellCare had achieved a major coup

toward its goal of eliminating the 80/20 Law problems, possibly allowing it to

avoid paying back $23 million in overpayments/" This avoidance appears to have

come largely as a result of Dr. Agwunobi's appointment and McCollum's election.

McCollum received hundreds of thousands of dollars in political funding from

WeHCare. Well Care supported McCollum because it knew he favored health care

providers and private insurers. Additionally, McCollum wanted to remove the

ability for whistleblowers to bring suit against the health care insurance industry.

Also, Dr. Agwunobi, its former board member, and a man it had just made a

millionaire, oversaw regulation of Well Care: a classic example of the ultimate in

43 [d. at Paragraph 12. 44 ld. at Paragraph 13.

21

disgust for which hard-working, struggling Floridians should not have been victimized.particularly by people that they trust with public responsibility.

McCollum's bias and conflict in passing fairly on the WellCare False Claims Act settlement extends far beyond his failure to question Dr. Agwunobi's conflict or ability to fairly oversee WellCare. Shortly after Dr. Agwunobi's appointment, McCollum turned a blind eye to one specific piece of legislation: a piece of legislation that Dr. Agwunobi approved was specially tailored to solve WeIlCare's 80/20 Law dilemma, possibly allowing the $23 million owed to be forever concealed from the citizens of the State of Florida. That legislation was Senate Bill 1116, the history and timing of which provides additional conclusive evidence of the bias of Attorney General McCollum in favor of WellCare and the healthcare industry, and proves that "their boy" would protect the public interest "the WellCare way."

H. Senate Bill 1116

WellCare's inability to answer regulators' requests for backup on the $23 million in overpayments reached a fever pitch in December 2006 and January 2007. Its efforts to stall and bluff were not working and Petitioner and his colleagues, who had failed to deflect the regulators with lesser frauds, were now being asked to simply give totally false data." Management knew that they would

45 [d. at Paragraph 11.

22

be exposed for their past frauds unless . the 80/20 Law "went away"because they

could not continue to keep up their criminal behavior without getting caught. They

. were in need of a permanent solution. "Soothsayer" Ryan's statements to

WellCare management demonstrate that somewhere between Mcf.ollum's

election, Dr. Agwunobi's appointment and January 26,2007, WellCare and Florida

politicians (beholden to WellCare) had agreed on a permanent solution. Their plan

was to amend Senate Bi111116 in a way that eliminated the 80/20 Law.

After "Soothsayer" Ryan's proclamation that the 80/20 Law was "going

. away" in January 2007, the mood in WellCare management changed and they no

longer worried about the present or potential future encounter overpayments.l"

Almost as if scripted by WellCare, events unfolded in a manner that caused the

repeal of the 80/20 Law. It could only be conscious avoidance that McCollum, as

the Attorney General and head of FMFCU, did not hear of these efforts. What is

worse is that the record is absolutely clear that in neither capacity did McCollum

act to protest or prevent the legislation's passage or object to or challenge it when

passed. McCollum failed to speak up, despite the fact that the only conceivable

benefit of the law's change would be to health care providers and insurers, which

would ultimately cost Floridians hundreds of millions.V if not billions, of dollars.

146 ld. at Paragraph 13. 1 . 47 Id. at Paragraph 17.

23

WeHeare can almost be heard to say, "Billy's a good boy and is worth every penny

we stole to spend on him; After all, he is our chief law enforcement officer."

On February 7, 2007, Senator Durell Peaden, the Chair of the Health and

Human Services Committee, filed Senate Bill 1116. The bill was designed to

restructure certain reimbursement systems in the behavioral health arena. As

introduced, it could be viewed as helpful legislation. On February 22, 2007, the

bill was referred to the Health and Human Services Appropriations Committee. A

form of the bill was also introduced into the Florida House of Representatives as

House Bill 1317. After the House and Senate failed to agree on terms for the bill,

it went to Conference Committee on April 12, 2007.

On April 27, 2007, Petitioner advised federal agents that he was working

with information he learned from WellCare management: that the 80/20 Law

would be stricken from law at .a Florida legislative meeting, which was scheduled

to be held on May 3 or 4, 2007.48 Two days later, on April 29, 2007, the events

previously described to Petitioner in advance occurred: the Senate Bill 1116

Conference _ Committee struck the 80/20 language from Florida Statute

409.912(3)(b).49 Petitioner saw Dr. Agwunobi's signed approval, as head of ARCA, of the repeal of the 80/20 Law. 50 Precisely as predicted by WellCare

481d. at Paragraph 14.

49 J

App. Ex ..

50 App. Ex. A, Paragraph 16.

24

management, '011 May 3~ 2007 the Conference Committee version of Senate Bill

11 n5~ striking the 80/20 Law, passed the House and Senate and was immediately

sent to Governor Crist for his signature.i' For reasons best known to Governor

Crist, the Governor vetoed the bill on May 24, 2007.52

It is suspicious that language that would have cost Florida taxpayers

hundreds of millions, if not billiona." of dollars. was almost passed and almost

became law. Also questionable is the fact that Dr. Agwunobi, as head of ARCA,

approved the bill.54 It is inconceivable that such a financially disastrous change

could get past McCollum, as head of FMCFU, without so much as a whimper. The

resolution of these suspicions is apparent; Dr. Agwunobi and McCollum owed

WellCare an expected return on their investment. The hell with protecting the

public interest-that's just for T.V.; "Hi, I'm Bill McCollum and I approve this

message."

McCollum.. and Dr. Agwunobi could "seal the deal," but they could not get

the legislation passed on their own. The entire Florida House and Senate had to

approve the measure. Political payback to WellCare required old-fashioned

political chicanery and last minute moves, and that is exactly what happened and

51 App. Ex. J.

r? .

J_ See Jan Anastasato, Consumer Artists Celebrate Mental Health Month, Fla. 4

Peer Network News 1 (Summer 2007); Letter from Charlie Crist, Governor of Florida, to Kurt Browning, Secretary of State (May 24~ 2007) (on file with author). 53 App. Ex. A~ Paragraph 17.

541d. at Paragraph 16.

25

why the undersigned respectfully believes that the majority of the Florida House

and Senate probably did not even realize for what they were voting.

WellCare's role as a political contribution juggernaut for the Republican

Party did not end with the 2006 election. Almost like the whir of an ATM

machine, simultaneous with Senate Bill 1116 going to the Health and Human

Services Appropriations Committee, Well Care and its subsidiaries, affiliates and

alter egos made fourteen contributions totaling $140,000 to the Republican Party

of Florida and $79,000 in contributions to thirty-two Republican politicians. These

same politicians who received contributions from Well Care in early 2007 managed

to find their way onto the Senate Bill 1116 Conference Committee, which was

considering the bill.55 It's amazing how coincidences occur, isn't it?

The Conference Committee that finalized the legislative processing of the bill

deleting the 80/20 Law did so at a most propitious moment: on a Sunday evening

at 9:38 p.m., with the bill to be voted on just a few days later." This is the kind of

dealing from the bottom of the deck that this Court needs to scrutinize. The

primary conferee/recipients of this funding were prominent and powerful figures in

appropriations and healthcare. Three Senators, Mike Bennett, Mike Fasano and

Jeff Atwater, received between $4,500 and $5,000 each. Members of the House

55 The conferee/recipients participated in the Conference Committee, as evidenced by their votes listed in App. Ex. J.

56 J

App. Ex ..

26

also .received funds totaling $5,000 each, including Adam Hasner, Ellyn

Bogdanoff, Trey Traviesa and Will Weatherford. All the referenced contributions'

were made during the life of Senate Bill 1116 and in a non-election year. 57 How

transparent is this? Even Ray Charles could see it.

Although these facts may not directly relate to the objective of this Petition,

they do show relevant facts bearing directly on WellCare's unscrupulous

investment in the legislative process; believing that their altruistic and timely

"political contributions" or "legalized bribes" would influence the governmental

decision making process. The sad part is they were right. The timing, the

methodology and the trail of money all irrefutably demonstrate that Well Care was

in control of the survival of the 80/20 Law and was successful in manipulating Dr.

Agwunobi, Attorney General McCollum and compromising the objectivity of

Senate Bill 1116 Conference Committee. This control would have provided

WeUCare with the opportunity to save itself millions in the future, and possibly

$23 million from the past.58 In its effort to make Senate Bill 1116 law, WellCare

effectively made Dr. Agwunobi and McCollum ringleaders-and the entire Florida

legislature unwitting aiders and abetters-in their fraud and desire to financially

pillage the Florida Medicaid system of billions.

57Por a list of the amounts and dates of these contributions, see App. Ex. K. 58 App. Ex. A, Paragraph 13.

27

I. The Attorney General '5 Performance on Medicaid Fraud

Undisputed facts show that providers and insurers defrauding Florida's

Medicaid program have had virtually free rein to operate in Florida during

McCollum's term as Attorney General. Florida's Office of Program Policy

Analysis and Governmental Accountability ("OPPGA") estimates that the State of

Florida loses as much as $3.2 billion of its $16.2 billion annual Medicaid

expenditures to Medicaid fraud each year.S9 Conversely, however, the reported

recoveries during McCollum's term as Attorney General declined for his first two

years in office and averaged no more than $98 million per year, a recovery rate of

approximately three percent of the estimated 10SS.60 This predictably abysmal

performance occurred despite the FMFCU's 232 full time employees and $18.8

million annual budget."

Last year, Senate President Jeff Atwater acknowledged that Medicaid fraud in

Florida "is epidemic, far reaching. ,,62 Despite being the second largest in the

country, boasting a staff of over 201 full time employees (at the time of the report),

59 Office of Program Pol'y Analysis & Gov't Accountability, Report No. 08-08, AHCA Making Progress But Stronger Detection, Sanctions, and Managed Care Oversight Needed (Feb. 2008).

60 AHCA & MCFU, Dep't of Legal Affairs, The State's Efforts to Control Medicaid Fraud and Abuse FY 2008-2009 12 (Dec. 2009).

61Id. at 4.

62 Florida Cabinet Watch, Thurman: McCollum's Response Can't Cover Up Failure to More Aggressively Fight Medicaid Fraud, http://floridacabinetwatch. blogspot.comJ20 1 010 3 /thurman- mccollums-response-cant -cover.html (Mar. 14, 2010).

28

. MeCollum's FMFCU .wasithirty-nlnth in the country for number of

convictions per staff person and twenty-fifth in the country for monies

. . recovered, according to a 2010 report issued by the United States Department of

Health and Human Services.". Attorney General McCollum~s track record on

pursuing Medicaid fraud in this state is so glaringly poor that fellow Republican,

State Senator Durell Peaden criticized McCollum~ "faulting the U.S. Attorney's

Office and the FMFCU for not focusing enough on Medicaid Fraud" in Florida.

Peaden concluded "[Bill McCollum] needs to get his butt in gear.,,64

Peaden's plain language criticism is borne out by additional troublesome

. statistics. Official state records also show that after McCollum became Attorney

General, recoveries of the McCollum-lead FMFCU actually dropped from prior

years in the first two years that have been reported. By the end of fiscal year 2008,

FMFCU civil and criminal recoveries were at a mere $56 million-their lowest

level since the end of fiscal year 2005.65 Records of the Florida Auditor General

63 See Alex Sink for Governor of Florida, Release: McCollum's Failure to Crack Down on Medicaid Fraud Leads to Senate Rejection of AHCA Chief, http://www.alexsink2010.co/news?id-0057 (last visited Sept. 21, 2010) (Citing Dep't of Health and Human Serv., SMFCU Statistical Information, FFY 2008). M Mary Ellen Klas & Marc Caputo, Sink Hits Medicaid Fraud, ST. PETERSBURG TIMES, Mar. 5, 2010.

65AHCA & FMFCU Dep'tof Legal Affairs, The State's Efforts to Control

r . Medicaid Fraud and Abuse FY 2007-2008 10 (Dec. 2008). The statistics from the

2008 fiscal year showed an improvement, largely due to recovery of $40 million .paid. to the state as a result of Petitioner. AHCA & MCFU, Dep't of Legal Affairs,

29

reveal that in the nineteen months ending in February 2007, 1 ~270 of the FMFCU

cases were dosed and the FMFCU's conviction and settlement rate during that .

time period was a dismal seven percent.i" According to the Joint Report of ARCA '

and FMFCU for fiscal year 2007-2008, FMFCU received 525 complaints of

Medicaid and health care fraud and investigated 287 of those and other complaints,

yet referred only thirty-two cases for prosecution during that time period. 67 The

2009 report shows that FMFCU and related agencies closed 2,078 cases of

reported fraud and made only sixty-eight referrals for prcsecution" Through the

end of 2009, McCollum's FMFCU also had the lowest rate of Medicaid

overpayment discoveries and recoveries since fiscal year 2004.69 As yet, no

information has been published regarding how many of these referrals were

prosecuted and resulted in convictions, but it is abundantly clear that the conviction

and overpayment recovery rates will pale in comparison to conviction statistics of

prior years. An August 2007 Auditor General's Report also criticized FMFCU by

finding that, as was the case with WellCare, case files frequently failed to

The State's Efforts to Control Medicaid Fraud and Abuse FY 2008-200987 (Dec. 2009).

66 Auditor General, Dep't of Legal Affairs, Report No. 2008-012, Medicaid Fraud Control Unit Prior Audit Follow-up 1 (Aug. 2007).

67 ARCA & FMFCU Dep't of Legal Affairs, The State's Efforts to Control Medicaid Fraud and Abuse FY 2007-20087 (Dec. 2008).

68 ARCA & MCFU, Dep't of Legal Affairs, The State's Efforts to Control Medicaid Fraud and Abuse FY 2008-2009 8l 82 (Dec. 2009).

691d. at 54.

30

document losses due to Medicaid overpayments and did not follow up on timely

collections, even when.payments were identified as due from providers. 70

-. In light of the foregoing information, it is not difficult tounderstand the

Attorney General's lack of performance in connection with the potential recovery

of millions of dollars from Well Care. McCollum's vociferous support for the

health care industry and his demonstrated and entrenched industry bias, combined

with the political and financial support McCollum garnered from the industry (and

from WellCare specifically) make his inaction in this matter a foregone conclusion.

J~ The Abdication of Responsibility: Frozen by Conflict

Notwithstanding the significant monetary interests of state taxpayers

addressed in the Complaint, some occurring as early as June 2002, and despite the

huge amounts of monies potentially recoverable, Attorney General McCollum has

'chosen not to intervene. to represent the State's interest against Well Care in

Petitioner's False Claims Act case. McCollum also failed to challenge Dr.

Agwunobi's appointment to AHeA or his approval of Senate Bill 1116 despite

McCollum's knowledge of his obvious conflict as a former member of the

WellCare Board. The undersigned counsel has been advised that neither AHeA

norFMFCU currently have any type of open or pending investigation of Well Care,

although some FMPCU members participated in the federal investigation of.

70 Auditor General, Dep't of Legal Affairs, Report No. 2008-012, Medicaid Fraud Control Unit Prior Audit Follow-up 2 (Aug. 2007).

31

We:llCare. the likely reason for McCollum's inaction against Well Care is his

conflict of interest described in detail herein. In light of the significant amount in

controversy, and in light of the egregious conduct of Welle are in its theft of monies

from the Florida taxpayers, McCollum's inaction cannot be allowed to stand.

IV. ARGUMENT

A. Introduction: Right to Representation Free From Conflicting Interests

The citizens of the State of Florida have a constitutional right to be

represented by an Attorney General free from conflicting interests. The right

applies to the Attorney General' s decision regarding the pending WellCare

settlement. 71 The right to representation unrestrained from personal conflicts

emanates from the Florida Constitution, Florida Statutes, an applicable United

States Supreme Court decision, and ethical rules that have governed the legal

profession for decades. This is a case of first impression for this Court.

71 There is no doubt that McCollum is the Florida constitutional officer authorized to accept or reject the WellCare settlement. See generally Lawyer v. Dep't of Justice, 521 U.S. 567 (1997) (providing that under Florida law the Attorney General is the Florida officer charged with accepting proposed federal court settlements); Watson v. Claughton, 34 So. 2d 243 (Fla. 1948) (determining that the Attorney General was the proper individual to represent the people in cases where Floridians have an interest in a suit). It is also clear that when Florida'sAttorney General exercises his authority, he is responsible to the people of Florida first and foremost. See Thompson v. Wainwright, 714 F.2d 1495,1500 (11th Cir. 1983) (stating that the Florida's Attorney General's responsibility is to the people),

32

B. The Florida Constitution and Statutes Require Disqualification

Conflict - free representation is so significant that it is incorporated in both the Florida Constitution and Statutes. As Attorney General, McCollum is controlled by article II, section 8 of the Florida Constitution (the "Sunshine Amendment"). See § 16.01(2), Fla. Stat. (Supp. 2009) (providing that "[tjhe Attorney General shall perform the duties prescribed by the [state] Constitution"). The objective of the Amendmentis to "impose stricter standards on public officials so as to avoid conflicts of interest." Plante v. Smathers, 372 So. 2d 933, 937 (Fla. 1979). Several factors influenced the Sunshine Amendment; including the improvement of confidence in state public officials, assistance in detecting and prosecuting violations of the law by public officials, deterrence of conflicts of interest and corruption and the public's right to know of an official's interests. Id. To this end, the Sunshine Amendment requires McCollum, as a public official, to disclose his finances and campaign expenditures, among other stipulations. Art. II, § 8(a)-(b), Fla. Const. Section 8(h) also states that the provision does not "limit disclosures and prohibitions which may be established by law to preserve the public trust and avoid conflicts between public duties and private interests." Id. §

8(h).

Beyond the Florida Constitution, certain statutory provisions are also applicable. The Code of Ethics for Public Officers and Employees is delineated in

33

Chapter 112 Part III of the Florida Statutes: Although section 112 is not directly

applicable to the entirety of the instant factual situation, the legislative intent is

certainly pertinent under the circumstances. Sections 112.311 (l )-(2) provide the

legislative intent behind the statute;

It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law, The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials. , . in situations where conflicts may exist.

It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided.

§ 112.311(2)-(2), Fla. Stat. (Supp. 2009).

Section 112.313(2) states that "[n]o public officer, employee of an agency,

local government attorney, or candidate ... shall solicit or accept anything of value

to the recipient ... based upon any understanding that the ... official action, or

judgment of the public officer, employee, local government attorney, or candidate

would be influenced thereby." A "conflict" or a "conflict of interest" is defined as

34

"a situation in which regard for a private interest tends to lead to disregard of a

pu b lie duty or interest." [d. § 112.312. n

A significant objective of the Code of Ethics is to promote avoidance of

recurring situations in which government officials are tempted to choose personal

gain over the discharge of their fiduciary duty to the public. Zerweck v. State of

Florida, 409 So. 2d 57, 60 (Fla. 4th DCA 1982). For decades, the conduct of

judges and attorneys has been governed by a standard of conduct requiring the

avoidance of impropriety. Id. Through its enactment of section 112.311, the

Florida Legislature intended to extend this principle to every branch of Florida

government. Id. at 60-61. While the language of section 112.311 has been

amended over time, the spirit of the statute is apparent in two opinions from the

State Commission on Ethics.

Prior to its amendment, section 112.313(1) prohibited a public officer from

accepting a gift that "would cause a reasonably prudent person to be influenced in

the discharge of official duties." Citing to this provision, Opinion 75-181, released

72 Although "gift" under section 112.312 does not include "[c]ontributions or expenditures reported pursuant to chapter 1 06, campaign-related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure by a political party," a portion of the contributions made by WellCare and its subsidiaries were illegaL This Court should also consider the significant amount of the total contributions, the fact that the contributions were made through the Florida Republican Party and forty-one entities (some from outside of Florida), as well as the proximity of the contributions to potential acts favorable to WellCare.

35

on September 4~ 1975~ provided that campaign contributions are a unique class of . gifts. Fla. Comm'n on Ethics, Formal Op. 75-181 (1975). The opinion noted that while contributions are legal,any contributions "made with the understanding that the official conduct would be influenced thereby" are prohibited. Id. Similarly, in Opinion 84-116 (Nov. 29, 1984), the Commission found that "a city commissioner may solicit funds for the defense of a law suit brought against him so long as there is no understanding that his official action would be influenced by a contribution and so long as he does not and should not know that it is being given to influence some official action in which he is expected to participate." Fla. Comm'n on Ethics, Formal Op. 84-116 (1984).

In the instant case, AttomeyGeneral Bill McCollum knew or should have

'; known that the campaign contributions provided to him were intended to "purchase't influence. Of course he didn't really think that they were giving him and the Republican Party over $2.6 million because they believed that sanctimonious gobbledygook on T.V. The amount of the contribution and the temporal relationship of the funds to the election should have caused McCollum or any reasonable person to expect the reasoning behind WellCare and its subsidiaries making the contributions. The appointment of Dr. Agwunobi and failure to challenge the repeal of the 80/20 Law demonstrate that McCollum understood this unspoken obligation to repay WellCare executives for their assistance in the

36

provision of funds that contributed to McCollum's rise to imminence, even if it

was on the backs of sick children, the elderly, the infirm and the otherwise

economically weak and disadvantaged-all of whom have no lobbyist like Mark

Ryan with soothsayer instincts.

Florida law provides that the duty to remain conflict-free is not limited to

scenarios provided for in the Florida Constitution or Statutes. See Art. II, § 8(h),

Fla. Const. It is impossible for McCollum to provide conflict-free representation

as the decision maker in the Well Care settlement matter or any matter related to

Well Care. For this reason, this Court should find that the citizens of Florida have a

right to a conflict-free decision maker and require McCollum to recuse himself

from making any decisions regarding the proposed WellCare settlement.

C. The Principles Announced in the United States Supreme Court's Caperton Decision Require McCollum's Recusal

No identifiable Florida case provides a rule directly on point in this case,

although the First District Court of Appeal has opined that the Attorney General

can be disqualified under certain circumstances. In Austin v. State ex ref.

Christian, 310 So. 2d 289 (Fla. 1975), the First District permitted a private citizen

to seek the remedy of quo warranto.

McCollum's behavior also runs afoul of the United States Supreme Court's

Caperton decision. See generally Caperton v. AoT. Massey Coal Co., Inc., 129 S.

Ct. 2252 (2009) (holding that the. Due Process Clause required the recusal of a state

37

supreme court justice due to the "serious risk of actual bias"), In this recent decision; the Court delineated a new standard to be applied in cases concerning the disqualification of judicial officers as a result of campaign contributions. Caperton invol ved a sitting state Supreme Court justice whose paramount campaign donor in the previous election, the leading executive of a mining company, had spent $3 million on his campaign. Id. at 2257. In Caperton, as in the instant case, the campaign contributions were funneled to candidates indirectly through other entities after the permissible individual contribution had been conferred to the candidates directly. Id. Also, as in Caperton, contributions in this case were paid in close proximity to significant matters pending before respective governmental entities. See id. In Caperton, the contributions were made prior to a state Supreme Court decision. ld. In the instant case, the election and contributions occurred in close proximity to the significant topics of Dr. Agwunobi' s appointment and efforts to repeal the 80/20 Law.

Recusal is required as an objective matter under certain circumstances "in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable." Id. at 2259 (quoting "VVithrow v, Larkin, 421 U.S. 35, 47 (1975)). The Caperton Court specifically provided that a showing of actual prejudice is not required for disqualification of a judicial officer. See id. at 2263. Alternatively, the Court employed the use of

r.'.

38

objective standards. Id. The Court asked "whether, 'under a realistic appraisal of

psychological tendencies and human weakness,' the interest 'poses such a risk of .

actual bias or prejudgment that the practice must be forbidden if the guarantee of

due process is to be adequately implemented.'?' Id. quoting Withrow, 421 U.S. at

47. The Court identified several factors to be considered in its inquiry, including

the size of the contribution in relation to the total contribution to the campaign, the

total amount spent in the election and the contribution's apparent effect on the

outcome of the election. Id. An additional point of contention was the temporal

relationship between the electionand the pending case. Id. Based on this analysis,

the Court concluded that there is "a serious risk of actual bias ... when a person with

a personal stake in a particular case had a significant and disproportionate

influence in placing the judge on the case by raising funds ... when the case was

pending or imminent." Id. at 2263-64.

This Court should adopt the same standard employed by the U.S. Supreme

Court in Caperton. Although not factually identical to the instant case, Caperton

has a heavy bearing on this matter because both cases involve the disqualification

of powerful public officials.73 While every campaign contribution does not suggest

a probability of bias, the instant case, like Caperton, should be considered an

73 Even though Caperton concerned due process, if McCollum were allowed to proceed and make a decision regarding the proposed Well Care settlement, his decision could be challenged on due process grounds.

39

"exceptional case" and an "extraordinary situation.HSer: Id. at 2263, 2265. As with the Supreme Court in Caperton, the issue of potential bias as to contributions made to a sitting Attorney General is a case of first impression with this Court. For

. this reason, this Court should intervene and formulate an identifiable standard. Id. at 2265. As the Supreme Court noted, "extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong." Id. A wrong exists in this case. This Court has the capacity to redress this wrong, thereby upholding Florida's 'Constitution and preserving the ethical cornerstones of the legal profession.

McCollum's conflicts of interest constitute a risk of actual prejudice.

McCollum received significant contributions from WellCare and its subsidiaries. These contributions came directly from entities related to WellCare or indirectly through the Florida Republican Party. McCollum has sided with private health care providers for decades. He has served as the leader of the Healthy Florida Foundation, advocated against False Claims Act actions and received about $884~OOO from WellCare, contributing to his victory in an otherwise close race.

Caperton first requires an analysis of the size of the contribution in relation to the total campaign contribution. During 2006, WellCare and . fourteen of its subsidiaries and alter egos made eighteen contributions to McCollum's Attorney

40

General campaign, totaling $9,OOO_?4 Even more significant; two of the

contributions made to McCollum were ultimately deemed illegal. In addition to

contributions made directly to McCollum, Well Care and its subsidiaries were the.

largest private donor to the Florida Republican Party. Donations to the Party

exceeded $875,000-substantially more than contributions made by other

substantial corporate donors. These substantial contributions facilitated the

Republican Party's funding of McCollum's campaign. The Republican Party was

the primary contributor to McCollum's campaign. Contributions received by

McCollum from the Republican Party totaled approximately $911,000, exceeding

the amount supplied by the public fund.

Many of the contributions made by the Republican Party were paid

simultaneously or in close proximity to the dates of the WellCare contributions to

the Republican Party. Also, the amounts of the contributions made by WellCare to

the Party closely resemble the amounts McCollum received from the Party.

McCollum's campaign contributions totaled $4,180,288, an amount that doubled

the total raised by his opponent in the general election.

The second factor considered in Caperton was the total amount spent in the

election. During the 2006 general election, McCollum's campaign expenditures

74 Well Care contributions spanned a much longer time period than the election cycle. From February 2004 to May 2007, Well Care and forty-one of its subsidiaries, affiliates or alter egos made political contributions to the Florida Republican Party totaling $2.6 minion. App. Ex. G.

41

totaled $3;446,943.88. The aggregate of his opponent's expenditures was $2.,093,036.47 for the. identical time frame. As in Caperton} McCollum's expenditures greatly surpassed those of his. rival. Partially as a result of WellCares direct and indirect contributions to his campaign, McCollum was able to spend over one and a half times as much as his opponent, which undoubtedly contributed greatly to McCollum's victory.

The third Caperton factor is the effect of the contribution on the outcome of the election. McCollum's election to the seat of Attorney General did not come easily. A scant 5.4 percent separated McCollum and his opponent, Campbell. 1\1cCollum's marginal victory, despite receiving over two times the amount raised by Campbell, signifies the impact WelICare's campaign contributions had on the outcome of the race. McCollum was elected Attorney General by 2,448,008 votes, comprising 52.7 percent of the total votes cast. The 2,197.959 votes cast for Campbell constituted 47.3 percent of the total votes.

Finally, Caperton recognizes the significance of the temporal relationship between contributions and relevant action. In this case, the temporal relationship between contributions made to McCollum by WellCare and McCollum's failure to take action is relevant. McCollum was elected Attorney General in 2006 and the suit False Claims Act against WellCare was filed in the same year. Also

. significant is the fact that the contributions made by Well Care and its affiliates,

42

subsidiaries, and .alter egos did vnot vcease foUowingMcCollum's,. election. Wellf'are and its re-lated entities continued to fund the Republican Party and. Congressional members following the 2006 election cycle.

In the first two months during which Senate Bill 1116 was pending - a measure that would have financially benefited WellCare at the expense of millions of taxpayer dollars .. WellCare and its related entities contributed a total of $140,000 to the Republican Party. Additionally, $79,000 in contributions was paid to thirty-five Republican members of the legislature. Not coincidentally, these same legislators were subsequently appointed to the committee charged with finalizing the language of the bilL

Caperton should apply in the instant case due to the unique and exceptional circumstances of this case and because Attorney General McCollum is more akin to an elected judge; he is more comparable to thejustice at issue in Caperton than a prosecutor ill the cases cited herein. McCollum is not only a lawyer-he is a public official serving in a politically motivated capacity. His actions, as well as and his inactions, are conducted and viewed under a political microscope. To ensure conflict-free counsel for the citizens of Florida, McCollum should be prohibited from making decisions related to the pending WeBCare settlement.

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D.The Rules of' Professional Conduct And EthicsDecisions Require Recusal ..

. As a result of his bias toward insurance providers and the contributions he

received.from WellCare, McColluIn should step forward and recuse himself. As a

lawyer and member of the Florida Bar, McCollum has a duty to reflect on and self-

regulate his own conduct. See R. Regulating Fla. Bar Preamble. A lawyer is both

a representative of his client and an officer of the legal system. Id. As a lawyer,

McCollum has a "special responsibility for the quality of justice." Id .

. There is an inherent conflict in McCollum's representation of the citizens of

Florida in the review, analysis, or consideration of the proposed WellCare

settlement in light of his demonstrated alliance with private health care providers

and receipt of hundreds of thousands of dollars in political contributions from

WellCare. While rule 4-1.7 provides that a client may waive any conflict by

consenting after consultation with the lawyer, this waiver is infeasible in the case

of McCollum whose "clients" are thecitizens of florida. See Art. IV, § 4(b), Fla.

Canst. (providing that the Attorney General is the "chief state legal officer"); R.

Regulating Fla. Bar 4-1.7(b)(1)-(2) (providing that a client may waive a conflict) .

. McCollum has failed to self-regulate his conduct in accordance with the ethical

cornerstones of the legal profession." McCollum has failed to take it upon himself

75 McCollum's failure to act in accordance with his moral and ethical obligations is a cause for great concern. The United States Supreme Court has said it well: HIf elected officials succumb to improper influences from independent expenditures; if

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to.avoid an appearance of impropriety orimpartiality, In light of these failures,

intervention by this Court is imperative to ensure justice for the citizens of the

State ofFlorida.

v. NATURE OF RELIEF REQUESTED

Petitioner respectfully requests that this Court find that this Petition

demonstrates a preliminary basis for relief and, in accordance with Florida Rule of

Appellate Procedure 9.1 OO(h), direct McCollum to respond and show cause how

and by what authority he can act in the conflict-free manner required by the

Constitution without the risk of actual bias in his consideration of matters affecting

WI eHCare. After full consideration, Petitioner requests that the Court issue a Writ

of Quo Warranto:

(1) Disqualifying McCollum .and his office as Attorney General and as head of

FMFCU from reviewing, analyzing or considering any proposed settlement

of Petitioner! s Complaint or any False Claims Act case pending against

WellCare or any matters relating to or involving Well Care; and

(2) Using its all writs powers, appointing an independent mind to replace

McColJum in consideration of Well Care matters due to the conflicts

described herein that involve the Office of the Governor; or alternatively

they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern." Citizens United v. Fed. Election Cornm'n, 130 S. Ct. 876, 911 (2010).

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(3) Disqualifying 1vkCollum from-acting under Florida Statute section 16.0,2 to .

appoint his replacement and ordering that the Governor appoint an '

independent counsel to act for the Attorney General's Office and head of

FMFCU in deciding on the WellCare matters until a newly elected Attorney

General takes office in January 2011; and

(4) Ordering that the effectiveness and application of any decisions regarding

Well Care made by McCollum be suspended until review and ratification or

rejection by the independent counsel appointed by the Governor or until the

new Attorney General takes office in January 2011; or alternatively,

(5) Ordering that all decisions by the Attorney General's Office or the FMFCU

on WellCare matters be deferred until a newly elected Attorney General

takes office in J anuary 2011.

VI. CONTRIBUTIONS DISGUISED AS "LEGAL BRIBES"

In seeking this Writ, we invite this Court to address the issue of "legal

bribery.?" Although election contributions are permissible under law, the reality

76 For more information on the concept of legal bribery, see Craig Holman, The Art and Folly of Distinguishing Campaign Contributions from Bribes, http://citizen vox.org/20 1 O/08/06/the-art -and-foIl y-of-distinguishing-campaign-contributions-

. from-bribes/, Aug. 6~ 2010; Judge H. Lee Sarokin, When Does a Campaign Contribution Become a Briber, Aug. 6, 2009, http://www.huffingtonpost.com/ judge-h-Iee-sarokin/when-does-a-campaign-cont_b_252920.html;. Democratic Underground, The Influence of Health Insurance Campaign Contributions on Blocking Health Care Reform, http://www.democraticunderground.comJdiscuss/

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· 'is that behind the facade they are, in fact, too often (legal) bribes." While the legal

system has attempted to rectify the immoral action of providing gifts in exchange

for favorable treatment, "[tlhe result has been an elaborate set of monetary limits

and disclosure requirements that superficially transfonnoutcome-directed

gratuities into [government] sanctioned benefits." Jeffrey Birnbaum, The End of

Legal Bribery: How the Abramoff Case Could Change Washington, WASH.

MONTHL v, June 2006. This Court needs to bring an end to an era of rampant legal

bribery and do what it believes is appropriate to stop this foolishness. It is

unrealistic to expect members of the legislature to establish their own self-

govemingguidelines because they are the direct beneficiaries - and sometimes the

incidental beneficiaries - of the corrupt system. In order to promote justice and

further public policy, this Court should take it upon itself to clarify the distorted

line that divides campaign contributions and bribery. A contribution becomes a

'bribe when it is as transparent as it is in this case.

Florida's '1'aj Mahal' controversy provides another exarnple of the

arrogance of state legislators. The instant case, like the controversy regarding the

First District Court of Appeal building, demonstrates immoral and unacceptable

behavior on the part of some legislators who now have memories equivalent to that

duboard.php?az=view_all&address=389x6195406 (July 31,2009 19:30 EST); Ellen S.Podgor, Prosecuting Campaign Contributions as Bribes, http://law professors.typepad.comlwhitecollarcrime_blog/2005/11/prosecuting_carn.html (Nov. 28, 2005).

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of a moron.the highest level on the Stanford-Binet Scale, EVen though money did not exchange hands in the events surrounding the TajMahal (that we know about), people undoubtedly profited at the taxpayers 'expense. Both circumstances represent examples of the arrogance of some legislators doing things "because they can't at 9:38 p.m. on a Sunday night. .. It seems they could learn a lesson from my nine-year-old son Barry, who says, "Is there going to be a consequence, Daddy?"

We recognize that a lawyer must be judicious and choose his language carefully. While we like to maintain the dignity of the process, we believe that public policy and public good compels the language that is being used and we cannot, in the name of judicial decorum, keep closing our eyes to see and our mouths to say what needs to be said to satisfy our responsibility as protectors of public trust. Lawyers have a responsibility to protect that trust, as do judges, but particularly Supreme Court jurists. Members of this Court have an even more . awesome responsibility, and frankly, the "bucks" should be stopped here. Although there will likely be a visceral oppositional component to the language

chosen, this Court needs to recognize the visceral reaction and, more importantly, address the problem with creativiry.vcommitment and courageous candor. The undersigned respectfully urges this Court to do so.

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VII. CONCLUSION

The fact-that Florida's Attorney General.has not and will likely not recuse himself speaks volumes. It is obvious that McCollum's failure to open an investigation into WeUCaredespite the State's substantial loss to Medicaid fraud means that his loyalty lies elsewhere. McCollum sat in silence as to the needs of the citizens of Florida when Dr. Agwunobi was appointed, and he further neglected the citizens' cries for justice through conflict-free representation as Senate Bill 1116 was on the horizon. Despite having the second largest Medicaid Fraud Unit in thecountry, McCollum' s unit is ranked among the lowest nationwide; both civil and criminal recoveries have declined substantially during his tenure. McCollum's irreconcilable positional and financial conflicts send a clear message to his "clients," the citizens of Florida, that he is unable and does not intend to do the tight thing.

Hundreds of millions of dollars of taxpayers funds are at risk of being lost through McCollum's rubber-stamping of a proposed False Claims Act settlement that has not been investigated and in which the amount stolen by WellCare has not even been determined. With all due respect to the Attorney General, it is his job to make an informed determination that the proposed settlement is in the best interests of the citizens and taxpayers of the State of Florida; and that the amounts proposed in the settlement fairly and accurately reflect repayment of the amounts

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actually stolen "from the taxpayers by WellCare, The citizens of Florida are

constitutionally 'entitled to nothing less than conflict-free representation from their

Attorney General, There is clearly a risk of bias here and it is evident that.

McCollum's personal interests are in conflict with the interests of the State of

Florida. McCollum should be precluded from taking any further action whatsoever

in this matter. The fairness and appropriateness of the proposed settlement should

only be determined by an independent, unbiased appointed counsel after the

requisite investigation and after compilation of all relevant facts and·

circumstances. Only by theissue-of the requested Writ of Quo Warranto will the

interests of the citizens of this State be properly served.

BARRY A. COHEN, ESQ. Florida Bar No. 0096478

COHEN, FOSTER & ROMINE, P.A. 201 E. Kennedy Boulevard, Suite 1000 Tampa, Florida 33602

(813) 225-1655; (813) 225-1921 - Fax Attorneys for Petitioner

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this petition complies with the font requirements of Florida Rule of Apellate Procedure 9.100(1),

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