Council president says general counsel's legal advice on monument erodes trust

Jacksonville City Council members grilled city General Counsel Michael Fackler about his legal advice that Mayor Donna Deegan could use private fundraising for removing Confederate statues from Springfield Park, an opinion that President Ron Salem challenged repeatedly and said makes it harder to trust the Office of General Counsel.

Fackler, who was confirmed by City Council as general counsel on Dec. 12, said he stands behind his legal guidance that Deegan did not need City Council approval for removing two statues last week from the Confederate monument.

The Office of General Counsel acts as a law firm for the entire consolidated government of Jacksonville so it is one of the most powerful positions in the city when it comes to giving legal guidance and determining the interaction of various parts of the government, including the power of the mayor and City Council.

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Salem said when the Sheriff's Office and other entities in the consolidated city government have asked him to support having their own attorneys for legal guidance, he has advocated for keeping the current structure with the Office of General Counsel "representing the whole city fairly."

"I have doubts about that right now," Salem told Fackler during a meeting of the council's Rules Committee. "I really do."

While Salem called it a flawed legal opinion, City Council member Matt Carlucci said Fackler correctly applied Jacksonville's strong-mayor form of government in saying Deegan had the authority to order the removal of the statutes without seeking council approval.

"Thank you for doing what you did, Mr. Fackler," Carlucci said. "You're young, you're new, but you didn't break away from the courage of what you knew what was right."

Carlucci said City Council had years to make a decision on the Confederate monument in Springfield Park.

"We can sit up here and not make history or we can sit up here and make history, but history requires action," Carlucci said. "That's what our mayor did, and I thank you for assisting her with that."

None of the council members who questioned Fackler said they want to move the statues back to the monument that was erected in 1915 in Springfield Park north of downtown.

The Jessie Ball duPont Fund and 904WARD, both Jacksonville nonprofit organizations, provided $187,000 for the work, and 904WARD contracted with ACON Construction for the removal of bronze statues of a woman holding a Confederate flag and of a woman reading to two children.

Fackler said Deegan could not have used public funds to remove the statues without council approval. He said he could find no obstacle, however, in the City Charter or ordinance code to using private funding without going to City Council.

City Council member Nick Howland, who has asked Fackler for a signed legal opinion on the mayor's authority to use private money or donated services, said Deegan overreached her authority. He called it a "blatant disregard for transparency in the process."

Howland said the ordinance code allows the parks department to operate a community services trust fund that accepts all non-governmental contributions, and any expenditure or use of an in-kind donation from that fund exceeding $100,000 must get City Council approval.

Fackler said that particular fund has "unique language" that it is for park improvements and enhanced programs. He said the removal of a statute does not fall into those categories.

Salem and City Council member Kevin Carrico questioned why removing the statutes from the Confederate monument didn't have to first go through the city planning department and potentially the Jacksonville Historic Preservation Commission since Springfield Park is in the Springfield Historic District.

The Springfield Historic District requires all property-owners within a historic district to submit an application for any exterior change to a piece of property. The planning department then reviews whether to grant a certificate of appropriateness for that change.

A draft legal memo about the mayor's authority to remove the Confederate monument statutes says the creation of the Springfield Historic District cited the neighborhood's parks and monuments as "significant characteristics" of the district.

But that ordinance did not specifically identify the Confederate monument as a "contributing structure" to the district, according to the draft legal memo that Fackler said he and another attorney in the General Counsel Office worked on to internally to hash out what the legal issues are.

Fackler said he did not reach out to the planning department to get its views on whether changing the Springfield Park monument would require a certificate of appropriateness. Salem said a prior legal memo given to Bob Rhodes when he was acting general counsel through the end of September determined that without a certificate of appropriateness, the city couldn't alter the monument.

Fackler said that memo was based on what the city needed to do if the monument is a "contributing structure" to the Springfield Historic District. Fackler said his own research of the ordinance that created the district in 1992 did not give that designation to the monument, so Deegan did not need to get a certificate of appropriateness.

Salem said there have been four certificates issued for work on Springfield Park including one in recent years obtained by Daryl Joseph of the parks department for work on the monument itself.

"Now if it was not a historic structure, why would he do that?" Salem said.

Fackler said he has not seen that certificate of appropriateness for the monument but he said it "could have been an abundance of caution" to get the certificate.

"But your point is well taken that the planning department apparently is treating it as something that needs" a certificate of appropriateness, Fackler said.

City Council member Jimmy Peluso, whose district covers Springfield as well as historic districts for Riverside and Avondale, said he agrees there are cases when the planning department will tell property owners to go through the certificate of appropriateness process out of an abundance of caution even when it's not required.

Peluso said Deegan acted within her authority.

"We do have a strong-mayor form of government," Peluso said. "Mr. Carlucci was spot-on as to why we do because 19 council members sometimes can't come together to make some tough decisions happen."

This article originally appeared on Florida Times-Union: Legal questions swirl over Confederate statue removal in Jacksonville