Nate Monroe: Deegan outfoxed and outshined City Council on confederate monument question

COMMENTARY | In dismantling Jacksonville's last remaining confederate monument, and doing so without input from the City Council, Mayor Donna Deegan relied on a potent and controversial tool that has been a cornerstone of executive power in the city for decades: the Office of General Counsel.

The city's charter vests the general counsel with the ability to issue legally binding interpretations of local ordinances, resolutions and the charter itself, a vast power that since the dawn of City Hall's modern consolidation era has often placed the unelected general counsel at the center of local controversies. Consider: Although former Jacksonville Sheriff Mike Williams framed his abrupt departure from elected office in 2022 as a "retirement" — following revelations he'd permanently moved outside Duval County, in violation of a residency requirement in the charter — he made the decision just hours before the release of a general counsel opinion that was set to boot him from office regardless of his willingness to leave. The general counsel ran off a sheriff without even releasing a final binding opinion.

In 2001, a former general counsel voided a vote by the Duval County School Board on busing contracts, igniting criticism that the general counsel, in overruling a decision made by elected officials, was acting like a king. In 2015, former Mayor Lenny Curry unilaterally nixed pension benefits for the ex-director of the Police and Fire Pension Fund, relying on a stinging opinion from his general counsel at the time (prompting a lawsuit the city settled for $250,000 after a judge entered a partial judgment in favor of the pension director). In 2019, the general counsel ruled that the City Council had veto authority over the Duval County School Board's desire to put a sales-tax referendum on the ballot. When the School Board hired outside attorneys to file suit to challenge that opinion, the general counsel objected, arguing the board had no authority to use attorneys other than those within the Office of General Counsel — a cruel Hobson's choice.

Throughout its history, the same complaints about the Office of General Counsel surface again and again: council members believe the general counsel — nominated by the mayor and approved by council — is too deferential to the mayor; the city's independent agencies and constitutional offices, like the School Board, believe the general counsel is too deferential to City Hall; the general counsel is regularly called on to resolve unsettled areas of law, reaching rulings that are often arguable if not entirely specious and that sometimes get overturned by a judge (after the great effort necessary to reach court in the first place).

The ability of the general counsel to influence events is not lost on the current members of the Republican-controlled Jacksonville City Council, who ran off Deegan's first choice for the job: Randy DeFoor, a former Republican council member with conservative views that included opposition to removing the Women of the Southland monument in Springfield Park. DeFoor had sometimes clashed with her former colleagues, who ultimately communicated their unwillingness to approve her for the post. So Deegan went with a newcomer in Michael Fackler, previously an attorney at Milam Howard Nicandri & Gillam P.A.

Fackler blessed Deegan's move to unilaterally take down the confederate monument in Springfield Park using private money, ending years of stalemate as the City Council failed to hold a final vote either endorsing or ending the statue's presence.

Council members complained during a committee meeting Tuesday about the "process" Deegan used to take down the statue, projecting concern for the precedent that use of executive power could mean moving forward and grilling Fackler on his determination Deegan was on solid footing to remove the monument.

But as general counsel controversies go, this is a tame one.

Nothing about Fackler's view infringes on the City Council's power to respond. The City Council could, if it so desired, direct Deegan to put the monument back up, but the plain reality is the City Council is too craven to do that. In fact, that is precisely why the city got here in the first place: For two years, despite explicit and repeated promises to hold community conversations and come up with a "comprehensive" solution (whatever that means), the council remained silent and the confederate monument just sat there neither endorsed nor scorned, a ridiculous half-measure that satisfied no one. Deegan, as she campaigned to do while running for mayor last year, stepped in and took it down.

Some council members have asked if this means the mayor can use private money to alter other parks or monuments. Sure, that's possible, but — and this has been left out of the council's various hypotheticals — the council would, as it does today, possess the power to reverse any unilateral changes. No one has robbed them of power but themselves.

The various legal arguments around Deegan's decision are abstract and ultimately beside the point. Was Fackler's decision arguable? Of course. General counsel decisions often are. That is, in theory, exactly why the city has this unusual setup in the first place: One doesn't need an arbiter when the law is crystal clear; you need one to settle close questions of law, and on close questions of law even bad lawyers can concoct halfway plausible arguments.

What does the general counsel think? That is the "process" in Jacksonville's consolidated government. If it sounds absurd or unfair, just know there have been calls for years, including in this column, to reform the way the Office of General Counsel works and fits in the city government, a need that still very much exists. But those complaints went unheeded by many of the same people who are today upset by Fackler's decision on the monument.

It apparently took the removal of a monument to traitors and slave holders to raise the council's ire over the power vested in the general counsel and the office of mayor. It's worth dwelling on that.

Nate Monroe is a metro columnist whose work regularly appears every Thursday and Sunday. Follow him on Twitter @NateMonroeTU.

This article originally appeared on Florida Times-Union: Nate Monroe: Deegan outfoxed and outshined City Council on confederate monument question