Ex-elder ombudsman blocked from suing state

TALLAHASSEE — The Florida Department of Elder Affairs is shielded from a lawsuit filed by a former state ombudsman for long-term care residents who was fired after she made critical comments about the operation of the program, an appeals court ruled Thursday.

Clare Caldwell was dismissed in 2011 as a regional ombudsman in South Florida, shortly after the release of a federal report that questioned whether the department had improperly interfered in the ombudsman program.

Before her firing, Caldwell had talked with investigators about alleged interference by the department and had discussed the program's independence during a meeting of a panel known as the Statewide Ombudsman Council, according to Thursday's ruling by a panel of the 1st District Court of Appeal.

The ombudsman program was created, in part, to look into and resolve complaints by residents about conditions in facilities such as nursing homes and assisted-living facilities. State law also directs the program to represent the interests of residents in protecting health, safety and the rights of residents.

But the appeals court said Caldwell's lawsuit is barred by "sovereign immunity," a legal concept that helps shield government agencies from litigation. Caldwell alleged in the lawsuit that the department had improperly interfered in her job as regional ombudsman and that she was entitled to damages for such things as lost wages and emotional pain and suffering.

"Although Caldwell points out that the Legislature has expressed the general intent to utilize voluntary citizen ombudsman councils under the leadership of the ombudsman to operate an ombudsman program without interference by an executive agency, there is no indication that the Legislature specifically intended to permit the Department (of Elder Affairs) to be sued for 'interference' in the internal management and operation of the ombudsman program, especially where the Legislature has provided that the '(the) ombudsman shall be appointed by and shall serve at the pleasure of the Secretary of Elder Affairs,'" the ruling said. "Even if it could be inferred that the Legislature intended to permit the department to be sued for 'interference by an executive agency' such an inference is not sufficient to constitute a clear and unequivocal waiver of sovereign immunity."

The appeals court, which overturned a decision by a Leon County circuit judge, also ruled against Caldwell in 2013 in a whistleblower case. Caldwell served as the regional ombudsman for eight years.

Caldwell's dismissal came during a turbulent period in the ombudsman program. The federal investigation followed allegations that Gov. Rick Scott's administration had jettisoned then-statewide Ombudsman Brian Lee in early 2011 because Lee clashed with parts of the long-term care industry.