Mayor Deegan and City Council each seek state ethics ruling on Randy DeFoor appointment

Mayor Donna Deegan asked the state Commission on Ethics to make the call on whether state law would put any limitations on Randy DeFoor serving as the city's general counsel, a request that will put her confirmation vote on hold for up to two months while awaiting a written opinion from the state commission.

Deegan asked for an advisory opinion hours before City Council voted Tuesday night on making its own request for a written opinion about the impact of state law on DeFoor if she returns to city government after her term as a City Council member ended June 30.

On Wednesday, Deegan said DeFoor has been the target of a "smear campaign" by people who want political payback against DeFoor because she was a vocal opponent of the potential sale of JEA in 2019. She said the city must "stop playing this game," according to a WJXT-TV report.

"None of this is really about her qualifications or her ability to do the job as a former City Council member," Deegan said during a news conference joined by DeFoor and supporters of her being appointed. "It is about personal grudges. It is about vendettas because Randy stood up to the establishment and largely because she stood up when they tried to sell JEA."

City Council member Terrance Freeman, who filed the legislation for City Council to seek a state ethics opinion, said Wednesday the request drew support from both Republicans and Democrats on council.

"The only person 'playing politics' with this appointment is Mayor Donna Deegan," Freeman said in a statement.

He said DeFoor's "participation in this political stunt raises further questions for me if she can truly be impartial if she is ultimately confirmed."

Deegan sought the opinion from the state Commission on Ethics after City Council members questioned whether state law would limit DeFoor's ability to fully carry out the duties of the city's chief legal officer.

"There's been a lot of discussion about what she can or can't do, so we just want to bring clarity by filing an opinion request for the Florida ethics commission from the mayor's office," said Phil Perry, spokesman for the mayor's office.

Former general counsel Jason Gabriel, who served as chairman of the General Counsel Qualifications Review Committee that recommended Deegan appoint DeFoor, wrote the request sent Tuesday to the state ethics commission on behalf of the mayor.

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The city's Office of General Counsel retained Gabriel as special counsel to write the memo making the case fo why the state commission should find DeFoor would have no limitations in serving as the chief legal officer for the consolidated government.

City Council member Kevin Carrico called the decision to hire Gabriel to write the memo a "conflict in and of itself."

"There's an expression, 'Don't bite the hand that feeds you,'" Carrico said during the Tuesday night council meeting. "You're paying for someone to write an opinion. It's naturally going to favor who's paying that person."

He said City Council needs to put forward its own request and questions to the state commission. The council voted 14-3 for legislation that council member Terrance Freeman filed last week to take that step.

"We need to get an unbiased opinion that's not solicited for money so we can see what the ultimate authority on ethics (at the state level) has to say about it," Carrico said.

Gabriel did not speak during the City Council meeting Tuesday. He has said previously during meetings of the General Counsel Qualifications Review Committee that he did not think state law would limit DeFoor's ability to serve as general counsel.

City Council member Matt Carlucci, who served in the past on the state ethics commission, said the question posed by Gabriel's memo covers the issue raised by council members. He said sending two requests on the same issue from the same governmental entity "is highly unusual" and could just create delays in getting an opinion the city needs to get as soon as possible.

"I will not support a second request, and I will not be a part of political shenanigans like this," Carclucci said.

City Council faces deadline to vote on DeFoor confirmation

City Council members will meet Monday in a workshop to formulate questions with assistance from the Office of General Counsel. Bob Rhodes, who is acting general counsel, told City Council that by working with them to refine their questions, they will be able to get the answers they need.

The clock is ticking on City Council voting on confirmation of DeFoor. Rhodes said the "most likely" scenario for getting an advisory opinion would be a vote by the state ethics commission "at the earliest" during its Oct. 20 meeting.

Rhodes will complete his tenure as acting general counsel by the end of September. If City Council has not voted by then on DeFoor's appointment, Deegan will appoint someone other than Rhodes to serve as acting general counsel in the interim, according to the City Charter.

A second deadline in the City Charter requires City Council to vote on whether it will confirm DeFoor within 60 days of that legislation being introduced in City Council. The legislation for Deegan's appointment of DeFoor had its first reading Tuesday so the 60-day deadline means the confirmation vote must take place by Oct. 21, just one day after the date when the state ethics commission could vote on issuing its formal opinion.

Perry noted that the commission's staff releases draft opinions prior to the commission's meetings, which would give Jacksonville officials an idea of what direction the commission is going in its answer before the Oct. 20 session.

City Council members have raised questions about whether a state law that restricts former council members from representing other people or entities before City Council for a two-year period would prevent DeFoor from giving legal advice to council members on matters her office is handling.

The state ethics commission issued an opinion in 2019 that said former City Council members could not represent other parts of consolidated city government for a two-year period on matters that went before City Council.

As a result of that opinion, former council member Lori Boyer operated with some limitations when she became CEO of the city's Downtown Investment Authority for two years. To comply with state law, DIA sent another representative of the city agency when it engaged with City Council. Boyer only provided information to council members when they directed questions specifically to her.

In contrast to that approach, the Deegan administration says in the memo written by Gabriel that state ethics law doesn't affect an attorney giving legal advice while serving the entire consolidated government that covers the mayor, City Council, independent authorities, boards and commissions and the Duval County School Board.

The memo's argument is the "practice of law and the legal duties and responsibilities" of the general counsel do not fall under any prohibitions or limitations in state ethics law.

The general counsel for the city "at all times" would be "legally representing the City Council (or government body) itself, and not any other person or entity before it," the memo says.

Deegan has cited the unanimous recommendation by the Qualifications Review Committee, which is comprised of five attorneys, in making the case for why DeFoor is qualified for the job and would not face any restrictions in state law as general counsel.

"They believe she will not be subject to any limitations in her role as General Counsel, and that is why I selected her," said in a statement last week.

But two members of the Qualifications Review Committee said that while the committee agreed DeFoor's background as an attorney and overall resume makes her qualified to be general counsel, the committee did not come to any finding regarding how state law might affect her as general counsel.

"That's not what we decided," said committee member Braxton Gillam, an attorney. "I think Mayor Deegan sort of overstated what we did say."

He said said committee members discussed the potential impact of the state law and had varying views on that question. He said the committee never reached an agreement among themselves.

"That was not within the scope of the committee to be able to do that," said former mayor John Delaney, who served on the committee because he once was the city's general counsel.

He said the committee wanted to flag that as a potential issue for further review if DeFoor were appointed by Deegan. He said that while several members of the committee "felt it was a resolvable legal issue," it was "something that needed to be addressed."

This article originally appeared on Florida Times-Union: Mayor Deegan and Jacksonville City Council seek ethics ruling on DeFoor