A flurry of newspapers published stories about a pair of nursing home workers who, facing criminal charges relating to the deaths of their patients in the aftermath of Hurricane Irma, are accusing then-governor Rick Scott of “destroying evidence” that might have exonerated them of guilt. According to the Miami Herald:
Two of the workers — Sergo Colin, a former night shift nursing supervisor at the Rehabilitation Center at Hollywood Hills, and Jorge Carballo, who was the facility’s administrator — filed a motion to dismiss this week, asking a Broward County judge to toss out the cases against them because they say the state violated due process by destroying voicemails nursing home employees left on Scott’s cellphone in the days following the storm. Scott had given out his number before the hurricane.
The judge in the case should admonish the defendant’s attorney for filing a frivolous motion and throw it out. Here’s why:
Any governor gets bombarded with phone calls at every waking moment. This is especially true in the case of Rick Scott in the aftermath of Hurricane Irma, and even when not dealing with hurricane damage, Scott regularly got so many phone calls that he had a full time staffer, who traveled with him, listen to voicemail messages, take down the caller’s name, number and what they were calling about, then delete the message to make room for more. Anyone with any experience with modern mobile phones has heard the message “the mailbox is full and cannot accept any messages at this time.”
Can anyone blame Rick Scott for deleting his voicemails, let alone accuse him of “destroying evidence?” Of course not.
But the defendants and their attorney are trying:
“As a direct result of Governor Scott’s order to destroy the recordings so as to cover up his own failings, the jury in this case will never have the opportunity to listen to heartfelt and desperate pleas to Governor Scott to please order (Florida Power & Light) to restore power to the A/C chiller,” the motion read.
The accusation is as absurd as it is insulting. If it were possible, any governor of Florida would always just call the local power company and “order them to restore power” wherever and whenever it is out. Reality, however, is a bit different. Restoring power after a major hurricane takes time. Millions of Floridians were without power after Irma, and undoubtedly, many people were making desperate pleas for their power to be restored. Some of them probably had the governor’s personal cell phone number, just like these nursing home workers.
The question is, what did they do after calling the governor’s cell phone and leaving a message? Did they just ignore their patients, sitting around and wait for the governor to call back?
Scott’s office made it clear that the defendants didn’t do their jobs:
“Every child knows that when there is imminent danger, 911 is the number to call,” a spokeswoman for Scott said. “Yet, trained health staff at this facility didn’t even do that. In addition to not calling 911, the nursing home never pursued transferring its residents to the hospital located directly across the street that had full power.”
Leaving voicemails on the governor’s cell phone isn’t the way to save the lives of vulnerable senior citizens threatened by heat stroke and death. Instead of wasting time leaving voicemails on the governor’s cell phone, the workers should have been moving their patients out of their stifling, overheated rooms. They could have called 911 and asked for emergency assistance, but that didn’t happen, either. Instead, they called the governor of Florida, a man who is responsible for safety of 21 million people, and who’s state just got clobbered by a Category 3 hurricane, and then apparently they sat twiddling their thumbs.
As for the idea that the governor “destroyed evidence,” that too is nonsense.
Florida’s newspapers love to make noise about the state’s Sunshine laws and how communications records discussing state business are often “public records” that must always be turned over or otherwise made accessible to members of the public.
Emails and certain other forms of written communication are one thing. But voicemails are generally considered “transitory,” meaning such messages are primarily a method to “communicate information of short-term value” and that, generally speaking, are “not intended to formalize or perpetuate knowledge and do not set policy, establish guidelines or procedures, certify a transaction, or become a receipt.”
It’s unclear just how the defendants think a voicemail left on anyone’s phone could exonerate them. Imagine even the most favorable voicemail the defendants could have left for Rick Scott. What could they have possibly said to the governor of Florida that would absolve them of their responsibility to their patients?
We can stipulate that they begged the governor desperately to restore power or shift resources to their location. But no matter what words they chose, no matter how compelling the message, they still had a responsibility to protect the individuals in their care. Whatever message Rick Scott or his staffer may have deleted, it could not possibly contain “exonerating evidence” relevant to this case.