Mayor Donna Deegan pushed back Wednesday on what she described as a “smear campaign” against former City Councilwoman Randy DeFoor, her nominee for the city’s top attorney position.
City Council voted Tuesday night to send a second legal query to the Florida Commission on Ethics about DeFoor’s ability to take the position so soon after her term ended.
Deegan objected to the council’s action, setting up the first significant clash between the Democratic mayor and an overwhelmingly Republican council.
“She’s facing a smear campaign y’all,” Deegan said of DeFoor. “That’s what this is about.”
On the campaign trail, she said, she vowed to build an administration that included leaders from across the political spectrum — including Republicans like DeFoor.
“That is exactly what we are doing,” Deegan said. “So why is it — why is it — that the Republican establishment continues to work against my Republican appointees?”
DeFoor recently left her City Council position, deciding not to run for the office again, and Deegan announced DeFoor as her pick for general counsel.
But the quick turnaround between sitting on Jacksonville’s City Council as an elected representative to potentially advising both the mayor and council on legal issues has posed concern about whether DeFoor’s appointment is legally sound. Council members have raised questions about whether a state law that restricts former council members from lobbying people or entities before City Council for a two-year period would restrict DeFoor’s ability to perform the job.
So the mayor’s office hired former General Counsel Jason Gabriel, who now is a partner with law firm Burr & Forman, to inquire with the state.
In a memo sent Tuesday to the Florida Commission on Ethics, Gabriel posed the question:
“Is former City Council member Ms. Randy DeFoor, prohibited or limited by Florida Ethics Laws such as Article II, Section 8(f), Florida Constitution or Chapter 112.313(14), Florida Statutes, from serving as the general counsel (the chief legal officer) to the City (which includes the City Council and the Mayor’s Office) and providing the legal services, counsel and representation required by virtue of that office to the City, within two years of leaving the City Council?”
The posit is a yes or no question, and Gabriel also included a legal opinion of his own on the answer:
“No. Former Council member Ms. Randy DeFoor would not be prohibited or limited by Florida Ethics Laws,” the memo states. “The practice of law and the legal duties and responsibilities of the General Counsel in the City of Jacksonville do not fall under the prohibitions of the above referenced Florida Ethics Laws as more fully discussed in this memo. At all times the General Counsel for the City would be legally representing the City Council (or government body) itself, and not any other person or entity before it.”
Gabriel writes that the state Supreme Court, through the Florida Bar, governs the practice of law.
Gabriel’s memo was sent Tuesday before the City Council meeting, much to the distaste of several council members.
Councilman Kevin Carrico was one of 14 members to pass an emergency resolution to seek a second advisory opinion from the state, unpackaged with the earlier legal question.
The vote was 14-3, with Councilmen Jimmy Peluso, Will Gay and Matt Carlucci voting against it and Councilman Rory Diamond absent, remaining overseas for military work.
There are plans to hold a workshop Monday to hash out details of the second memo to the Ethics board, but Carrico shared his concerns Tuesday.
“At the mayor’s request our office has engaged Mr. Gabriel as a special counsel,” Carrico said. “So to me, that’s a conflict itself. You paid someone to write an opinion. There’s an expression that says, ‘Don’t bite the hand that feeds you.’ You’re paying someone to write an opinion. It’s naturally going to favor who’s paying that person.”
Carrico said that while the council trusts Gabriel and “thinks he’s a good guy,” he doesn’t trust his status as paid outside counsel.
“We need to get an unbiased opinion that’s not solicited for money, so we can see what the ultimate authority on ethics has to say about it,” Carrico said.
Councilman Gay asked Bob Rhodes, acting general counsel for the city, to help clarify the situation.
“(Gabriel) is making an advocacy argument for a result. … It is a lawyer’s interpretation of the law, and a suggestion as to what the law should be, and a suggestion as to what that opinion should be. And that’s what he’s fully capable of doing and he’s free to do that,” Rhodes replied.
The acting top attorney said there would be a difference in the two options sent to the state.
He said both pose similar questions about the two-year ban on lobbying in relation to serving as general counsel.
“But there are two types of opinions, and I think it’s important to understand this,” Rhodes said. The mayor’s opinion is what’s called an advocacy opinion. It asks a question, and it presents a strong answer in a brief form and advocacy form. Just a yes or no. They’ve asked one question. If it applies, yes. If it doesn’t, no. But no further clarification.”
But Rhodes said there is no consensus whether the constitutional amendment to state statutes applies to the current situation with the General Counsel’s Office.
‘We need illumination,” Rhodes said. He added that the General Counsel’s Office has not provided its own advisory opinion.
Carlucci told his colleagues that an additional opinion was unnecessary and unwarranted, and was party politics.
“An opinion’s already been sent,” Carlucci said. “I will not support a second request. And I will not be a part of political shenanigans like this. And that’s what I believe. And I’m entitled to what I believe. And as I said, I have the scars to prove it.”
On Wednesday, Deegan stood at a news conference with Carlucci, Gay, Peluso, Gabriel, DeFoor and a wall of other supporters behind her. She pushed back with fervor over what she decried as party politics.
The mayor said the efforts by council members are based on grudges over DeFoor’s criticism of the proposed sale of JEA in 2019 and unbecoming of how the city has asked her to lead.
“The same forces who tried to sell JEA and are now actively working against Randy’s nomination, are putting pressure on our council people,” Deegan said. “They’re using their typical playbook, dividing our community, scorched-earth tactics, whisper campaigns and outright lies that impugn Randy’s good character — false and, frankly, sexist accusations that Randy allegedly doesn’t have the right temperament to lead this office.”
Deegan said that before DeFoor’s appointment was even announced, she received support for DeFoor from those who are now, she feels, fighting against the appointment.
But Councilman Nick Howland said the mayor should have asked the opinion even before she nominated DeFoor.
“I frankly wish the administration had requested an opinion on this and received it before the appointment ever happened,” Howland said. “Nonetheless, here we are.”
He said the council has every right to issue a second memo and the body is empowered by the charter to confirm DeFoor’s appointment.
“I actually don’t care if the administration has asked anything,” Howland said. “The council has the right to ask whatever we want.”
Council President Ron Salem also shared a pointed opinion about Gabriel’s opinion.
“I … spoke to Mr. Gabriel this morning and he told me of his opinion. And I told him, I don’t care what your opinion is, you’re not the general counsel anymore,” Salem said.
He said it was necessary to give council members all the information they need before the vote, and they seemed to want more info — and not a yes/no advisory opinion, as Gabriel laid out.
Councilman Terrance Freeman, chair of the council’s Rules Committee, insisted that the effort to send a second legal question was not an effort to hold up DeFoor’s appointment.
“This is not a tool that I was using to weaponize to hold up an appointee,” Freeman said. “I’m pretty confident that many of us sitting in these seats right now are ready to take a vote. We’re ready to move on and get our city to move forward. But I wanted to make sure that as the Rules chair, we are in the proper posture, that we are following policy.”
After Wednesday’s news conference, Freeman’s office issued a statement calling the event a “political stunt.”
“Last night’s resolution for an ethics opinion received nearly unanimous approval from the City Council — from both Republicans and Democrats alike,” Freeman wrote. “Mayor Deegan’s attacks on the duly elected Legislative Branch is disappointing and flies in the face of the positive message of unity that the Mayor campaigned on. The only person “playing politics” with this appointment is Mayor Donna Deegan.”
Councilman Rahman Johnson said the council “would not be in the situation had we not been allowed as the Rules Committee to be able to speak to the Ethics Commission to get some clarity to do our job.”
He said he still wanted to know the opinion of the acting general counsel’s office.
“I do support this emergency, if for no other reason, but for the Rules Committee to be able to do the job that we were appointed to do.”
Councilman Michael Boylan appeared measured in his response to the emergency vote.
“The issue is this: If he offers us an opinion and we as a council act on that opinion, we open ourselves up to court challenges,” Boylan said. “If someone can come along and say we she wasn’t qualified to make that decision, or whether there should be limitations to it as to her ability to make those decisions. So I want to support Ms. DeFoor in this process. I want to make sure she has a clear path to operate as fully as she should as the general counsel.
Because DeFoor’s appointment requires a supermajority vote — 13 out of 19 votes — City Council has the ability to delay or shoot down the appointment. But Gabriel said Tuesday that an interim counselor will continue to staff the office.
Rhodes’ temporary tenure in the position ends at the end of September, but the mayor can extend that appointment for 90 days. When those 90 days are up, Deegan would need to appoint a new acting counselor and could potentially place DeFoor in that position until the process is complete.