§ 25A-9. Financial Sustainability.
It is the intent of the Commission to promote, protect, maintain, and improve the health and safety of all residents and visitors of Miami-Dade County through a fully functioning and sustainable public health trust.
(a)
Conditions. The Commission finds that it is in the best interest of the public it serves to take action to preserve the Trust and to ensure its financial sustainability by requiring the Trust to notify the Commission, the Mayor and the Commission Auditor when any one of the following conditions occurs:
(1)
Trust failure to, within the same fiscal year in which due, timely make any applicable debt payments as a result of a lack of funds.
(2)
Trust failure to pay uncontested claims from creditors within ninety (90) days after the claim is presented, as a result of a lack of funds.
(3)
Trust failure to transfer at the appropriate time, due to a lack of funds:
(i)
Taxes withheld on the income of employees; or
(ii)
Employer and employee contributions for either federal social security or any pension, retirement, or benefit plan of an employee.
(4)
Trust failure to pay for one pay period, due to a lack of funds:
(i)
Wages and salaries owed to employees; or
(ii)
Retirement benefits owed to former employees.
(5)
An unreserved or total fund balance or retained earnings deficit, or unrestricted or total net assets deficit, as reported on the balance sheet or statement of net assets on the general purpose or fund financial statements, for which sufficient resources of the Trust, as reported on the balance sheet or statement of net assets on the general purpose or fund financial statements, are not available to cover the deficit. Resources available to cover reported deficits include net assets that are not otherwise restricted by federal, state, or local laws, bond covenants, contractual agreements, or other legal constraints. Fixed or capital assets, the disposal of which would impair the ability of the Trust to carry out its functions, are not considered resources available to cover reported deficits.
(6)
An advance of any County funds to the Trust, due to a lack of Trust funds to address operational needs, to support operational needs and expenses.
(7)
The Mayor reports that PHT management and/or the Board of Trustees are not making acceptable progress in developing and implementing a corrective action plan to address managerial and financial deficiencies in accordance with the letter agreement (dated March 23, 2010) entered into pursuant to Resolution No. R-323-10.
(b)
Notice. When one or more of the conditions specified in Subsection (a) have occurred, or likely will occur within one hundred twenty (120) days, the Trust shall submit written notice to the Mayor, Chairperson and members of the Commission, and the Commission Auditor. Upon receipt of such notice, the Chairperson of the Commission shall place the item on the agenda for consideration at the next regularly scheduled Commission meeting, or a special meeting may be called in accordance with Commission rules, in order to address the item.
(c)
Assistive measures. Upon notification by the Trust or another party that one or more of the conditions in Subsection (a) have occurred or likely will occur, the Commission shall determine whether the Trust needs assistance to resolve or prevent the condition. If assistance is needed, the Commission may implement assistive measures which may include any one, or any combination of, the following:
(1)
Management watch. The Commission may direct the Mayor or the Mayor's designee to place the Trust on management watch on such terms and conditions as the Mayor, or the Mayor's designee, deems appropriate, including the authority to assign support personnel and staffing to the Trust as needed. The Commission intends that the more stringent review and oversight of the Trust by the Mayor or the Mayor's designee would improve the functioning of the Trust and promote necessary planning, assessment and monitoring of the Trust's financial health, and ensure essential management to advance the Trust's financial sustainability. The Commission may direct the Mayor or the Mayor's designee to periodically report to the Commission on the Trust's compliance with the terms and condition of said management watch and the Trust's progress toward resolving the conditions specified in Subsection (a). The Trust shall remain under management watch for such period of time as determined by resolution of the Commission.
(2)
Recovery plan. The Commission may require and approve a plan, to be prepared by the Trust in consultation with the Mayor, or his or her designee, and the Board of County Commissioners prescribing actions that will cause the Trust to no longer be subject to this section. However, if the Commission establishes a Financial Recovery Board and requires preparation of a recovery plan, the Trust may prepare the recovery plan in consultation with the Financial Recovery Board as well as the Mayor, his or her designee, or the Commission.
The plan shall be submitted to the Commission within sixty (60) days of the Commission's action requiring the plan, or such longer period of time as determined by the Commission. The Trust shall submit copies of the plan to the members of the Commission concurrently with submission to the Mayor. The plan must include, but need not be limited to:
(i)
Provision for payment in full of obligations outlined in Subsection (a), designated as priority items, that are currently due or will come due.
(ii)
Establishment of priority budgeting or zero-based budgeting in order to eliminate items that are not affordable.
(iii)
The prohibition of a level of operations which can be sustained only with nonrecurring revenues.
(3)
Audit. The Commission may direct the Commission Auditor, or the external auditor of the County to audit any or all records of the Trust in accordance with Section 25A-5(c) (General financial provisions), herein. The Commission Auditor or the County's external auditor shall consult with the Trust to identify any steps necessary to bring the books of account, accounting systems, financial procedures, and reports into compliance with applicable law. The Commission Auditor or the County external auditor shall report its preliminary findings to the Commission within sixty (60) days of audit commencement. The Trust and its internal and external auditors shall cooperate fully with the Commission Auditor, or the County's external auditor.
(4)
Technical Assistance. The Commission may provide technical assistance to the Trust.
(5)
Financial Recovery Board. The Commission may establish a Financial Recovery Board ("Recovery Board"). The County Commission's determination to establish a Recovery Board shall be by adoption of a resolution setting forth the time period such Board shall be in existence and the types of Board action which may be vetoed by the Commission and the timetables and procedures for exercise of such veto authority. Actions of the Recovery Board subject to Commission veto shall be filed by the Recovery Board with the Clerk of the County Commission, who shall place same on the next regularly scheduled County Commission agenda for County Commission consideration without the requirement for committee review. Such actions of the Recovery Board shall become effective upon the adjournment of the next regularly scheduled County Commission meeting unless vetoed by an affirmative vote of two-thirds ( 2/3 ) of those Commissioners then in office. A County Commission veto of any action taken by the Recovery Board shall be final and determinative.
Notwithstanding any provision of the Code to the contrary, the Recovery Board shall be authorized and empowered to serve as the governing body of the Trust effective upon appointment of at least four (4) members and subject to Commission veto authority all as provided herein. The Mayor and the County Attorney shall provide support to the Recovery Board.
Additionally, the Recovery Board shall comply with any Commission directive to the Recovery Board, as set forth from time to time by resolution of the Commission. A resolution adopting a directive that undoes or modifies action of the Recovery Board or any of its committees shall require an affirmative vote of two-thirds ( 2/3 ) of those Commissioners then in office.
During the tenure of the Recovery Board, the governance powers of the currently sitting Trust Board of Trustees shall cease and the currently sitting Board of Trustees shall be dissolved and shall no longer serve as the governing body of the Trust. The terms of all currently sitting voting members of the Board of Trustees and ex officio members shall automatically expire upon appointment of four (4) members of the Recovery Board.
During the tenure of the Recovery Board, the provision of Sections 25A-3(d) (Appointment and removal of Trustees), and 25A-3(e) (Tenure of Trustees), herein shall not apply. The Application of Sections 25A-3(d) and 25A-3(e), herein shall commence on the conclusion of the tenure of the Recovery Board. The Nominating Council set forth in Section 25A-3(d), herein shall convene in accordance with such section, except that the membership shall include five (5) members of the Financial Recovery Board in lieu of the voting Trustees of the Board of Trustees, not less than ninety (90) days prior to the conclusion of the tenure of the Recovery Board for the purpose of assigning members of the expiring Recovery Board to staggered initial terms as voting members of the reestablished Board of Trustees and submitting said assignments to the Commission for ratification.
(i)
Powers and duties. The Recovery Board shall hold regular meetings and record such meetings in accordance with the requirement for the Board of Trustees as described in Section 25A-3(f) (Organization, powers and duties of the Board of Trustees), herein. Except as specifically provided in Section 25A-9(c) (Assistive measures), herein, during its tenure, the Recovery Board shall have all of the powers, duties and responsibilities customarily vested in the Board of Trustees of the Trust and as provided for in Chapter 25A of the Code, except that those powers and duties shall be limited by the Commission's veto authority as provided herein.
The Recovery Board shall exercise supervisory control over the operation, maintenance, and governance of all designated facilities and of all functions and activities taking place in connection with the operation of designated facilities and shall be authorized to exercise such powers as provided for in Section 25A-4 (Powers and duties of the Trust), herein, except as modified hereinafter:
(A)
Appointment and evaluation of the Chief Executive Officer. The Recovery Board shall be empowered to evaluate, appoint, suspend and remove a Chief Executive Officer of the Trust. The Recovery Board shall evaluate the Chief Executive Officer's performance periodically, at its discretion, but no less than annually. Any employment contract for a Chief Executive Officer appointed by the Recovery Board shall require prior County Commission approval before becoming effective.
(B)
Health care delivery policies. The Recovery Board shall develop policies, procedures and practices to promote successful operation of the Trust and its designated facilities and to ensure financial sustainability of the Trust. The Recovery Board shall recommend health care policies to be approved by the Commission relevant to the short and long term financial sustainability of the Trust and the designated facilities.
(C)
Intergovernmental cooperation. The proposed annual operating agreement between the Trust and Miami-Dade County, as described in Section 25A-4(i) (Intergovernmental cooperation), herein shall be approved by the Recovery Board and then submitted to the Board of County Commissioners for approval in September of the applicable year. During the tenure of the Recovery Board, the Trust/County Committee as described in Section 25A-4(i), herein, shall cease to meet, review, approve, and make recommendations regarding the Annual Operating Agreement.
(D)
Contracts. For purposes of compliance with the formal bid requirements of Section 5.03(D) of the Charter of Miami-Dade County, Florida, the term "Board" as used in Section 5.03(D) shall be construed to be "Recovery Board."
(E)
Personnel. Any personnel actions or policies taken or issued by the Recovery Board shall not be inconsistent with any applicable collective bargaining agreements, as amended. The Recovery Board shall recommend to the Commission policies for labor management and the negotiations of labor agreements with organizations representing Trust employees. Additionally, the Recovery Board shall recommend to the Commission proposed labor agreements negotiated with labor organizations representing Trust employees. Notwithstanding any other provision of Chapter 25A, the Commission may approve or take other action regarding the proposed agreement by a majority vote, except that the Commission may only disapprove or amend the proposed agreement by a two-thirds ( 2/3 ) vote of those Commissioners then in office.
(F)
Issuance of bonds and ability to borrow money. The Recovery Board shall be empowered to enact resolutions requesting that the County Commission effectuate the issuance of bonds or authorizing the Trust to borrow money.
(G)
UM Annual Operating Agreement Committee and FIU Annual Operating Agreement Committee. During the tenure of the Recovery Board, there shall be a UM Annual Operating Agreement Committee ("UM Committee") and a FIU Annual Operating Agreement Committee ("FIU Committee"). The Trust Chief Executive Officer shall negotiate the annual operating agreement with the University of Miami and shall submit his/her recommendations to the UM Committee. The Trust Chief Executive Officer shall also negotiate the annual operating agreement with Florida International University and shall submit his/her recommendations to the FIU Committee. The UM Committee and the FIU Committee shall make recommendation regarding the respective annual operating agreements to the Recovery Board. The UM Committee and the FIU Committee shall semi-annually review fiscal reconciliation reports of funds provided to UM and FIU respectively for services provided under the annual operating agreements, and shall report thereon to the Recovery Board. The UM Committee and the FIU Committee shall oversee the methods and manners by which the Trust holds the universities accountable for performing in accordance with the terms of the agreements and shall report thereon to the Recovery Board. The UM Committee and FIU Committee shall each consist of three (3) Recovery Board members as appointed by the Recovery Board Chairperson.
(H)
Reporting. Upon appointment, the Recovery Board shall report to the Commission monthly at a Board of County Commissioners scheduled meeting, or as otherwise determined by the Commission.
(I)
Additional powers. Upon appointment, the Recovery Board shall have the power to: approve or disapprove all budgets and budget amendments; establish an estimating conference process for determining and monitoring revenues, expenditures, cash flow and deficits; establish a fiscal sufficiency advisory board; make recommendations to the County Commission of any actions it may take to resolve the Trust financial condition; and perform other duties assigned by the County Commission.
(ii)
Recovery Board structure.
(A)
Composition and Qualifications. The Recovery Board shall be composed of seven (7) voting members, none of whom shall be an employee of the Trust. Each member of the Recovery Board shall be a United States citizen and a permanent resident and duly qualified elector of Miami-Dade County, unless the Commission waives the residency requirement in its discretion. Each member of the Recovery Board shall be of an outstanding reputation of integrity, responsibility and commitment to serving the community.
Each member of the Recovery Board shall have experience in hospital operations, management, finance, business or other experience relevant to the Recovery Board's duties and responsibilities. No member of the Recovery Board shall have any conflict of interest, as defined in the Conflict of Interest Ordinance, with the Trust or its designated facilities. Members of the currently sitting Board of Trustees, or former Board of Trustees members, who meet the qualifications provided herein, may be nominated to serve on the Recovery Board. A member of the Recovery Board may be removed for cause by a majority vote of the Board of County Commissioners.
(B)
Organization. The Recovery Board, by majority vote following nomination, shall elect its Chairperson and Vice-Chairperson. The Recovery Board may adopt, modify, and amend the existing bylaws and rules and regulation of the Public Health Trust for the Recovery Board's governance and for the operation, governance, and maintenance of designated facilities. Such bylaws and amendments shall not be inconsistent with the ordinances of the County. The Recovery Board shall form subcommittees to assist in its work. The subcommittee membership shall not be limited to members of the Recovery Board.
(C)
Appointment. The Commission shall appoint four (4) members of the Recovery Board from a list of persons nominated by each Commission member. The Commission shall vote on all nominees. The four (4) nominees with the greatest number of votes shall be appointed as Recovery Board members.
The Commission may ratify appointment of the remaining voting members as follows: One (1) member of the Recovery Board shall be designated by the Mayor in writing, and a copy thereof shall be filed with the Clerk of the Commission; one (1) member of the Recovery Board shall be designated by the Chairperson of the Miami-Dade Legislative Delegation in writing, and a copy thereof shall be filed with the Clerk of the Commission; one (1) member of the Recovery Board shall be designated by the President of the South Florida AFL-CIO in writing, and a copy thereof shall be filed with the Clerk of the Commission.
Upon receipt of any written designation to fill an initial or subsequent vacancy by the Mayor, the Chairperson of the Miami-Dade Legislative Delegation, or the President of the South Florida AFL-CIO, the Clerk of the Commission shall serve copies on each member of the Commission. Any Commissioner may request that the designations be presented at the next regularly scheduled Commission meeting for review. Such request shall not be subject to committee review or to the four-day rule. Absent any disapproval at the next regularly scheduled Commission meeting, the designees shall be deemed ratified, and shall be deemed appointed to the Recovery Board.
Upon any vacancy occurring on the Recovery Board, the Recovery Board shall notify the Chairperson of the Commission and shall request that the vacancy be filled as provided herein.
(D)
Term. The Recovery Board shall serve for no longer than twenty-four (24) months, or such shorter or longer period of time as determined by resolution of the Commission. The Recovery Board may recommend shortening or lengthening its tenure by submitting to the Commission a duly enacted resolution of the Recovery Board. The Commission shall consider any such resolution, however, the Commission shall be under no obligation to take affirmative action upon the recommendation. The Commission may consider, among other factors, whether the conditions specified in Subsection (a) have resolved, or are likely to resolve promptly, when determining whether to shorten or lengthen the Recovery Board's term. Upon conclusion of the term of the Recovery Board, the Board of Trustees shall be reestablished. The initial appointments to the reestablished Board of Trustees shall include all members of the expiring Recovery Board. Each voting Trustee shall serve the terms they are appointed to in accordance with Section 25A-3(d) (Appointment and removal of Trustees). Following the reestablishment of the Board of Trustees, all subsequent vacancies shall be addressed in accordance with the nominating process set forth in Sections 25A-3(d) (Appointment and removal of Trustees) and 25A-9(c)(6) (Financial sustainability), herein.
(E)
Bond. Before entering upon the duties of office, each appointee to the Recovery Board shall give bond in the amount of one hundred thousand dollars ($100,000.00) to the Clerk of the Commission for the faithful performance of the duties of office and shall take the prescribed oath of office. This bond also is required of currently sitting Trustees. Recovery Board members shall serve without compensation but shall be entitled to reimbursement for necessary expenses, including the expense of performance bonds, incurred in the discharge of their duties.
(Ord. No. 10-32, § 1, 5-18-10; Ord. No. 11-40, § 2, 7-7-11; Ord. No. 11-43, § 2, 7-7-11; Ord. No. 11-63, § 1, 8-2-11; Ord. No. 12-04, § 2, 1-24-12; Ord. No. 12-113, § 2, 12-18-12)