Randy DeFoor's appointment faces ethics-related questions from City Council

Randy DeFoor's path to become Jacksonville's next general counsel is running into pointed questions from City Council members about how state law might restrict her ability to give them legal advice, setting up a potential request to the state Commission on Ethics for a written advisory opinion while a deadline looms to vote on her confirmation by the end of September.

At issue is a state law that applies to any former City Council member for two years after leaving a council post when that council member takes another job in city government.

DeFoor, whose last day as a council member was June 30, is Mayor Donna Deegan's choice to be the city's chief legal officer providing advice across the full scope of Jacksonville's consolidated form of government.

The City Charter for Jacksonville requires a City Council vote on confirming the next general counsel within 90 days of when Deegan took office on July 1 so the clock is ticking. City Council will decide Tuesday whether to act on an emergency basis and seek a written advisory opinion from the state ethics commission about DeFoor.

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There is no guarantee the city would get a written opinion before the deadline for the confirmation vote. The process for obtaining a formal written advisory opinion typically takes months because the staff must research the issue and then submit it to the state ethics commission, which meets every couple of months, for approval.

If the ethics commission's staff were able to deliver an informal opinion that doesn't need a vote by the ethics commission, the turnaround time would be faster, but there is no definitive time for how long that would take.

"I hope we get a response back sooner rather than later," said City Council member Terrance Freeman, the chairman of the Rules Committee that does the first round of voting on mayoral appointees.

Freeman, who filed the legislation seeking the opinion, said City Council needs a clear understanding of how state law could impact DeFoor in the role of general counsel.

"Ultimately, the goal is to be transparent, put everything into the sunshine and into the light, and allow our city to have the confidence we're moving forward in this process in a way that is transparent and open," Freeman said. "Right now, there's a cloud over it."

Deegan said DeFoor won backing by the city's General Counsel Qualifications Review Committee that interviewed DeFoor and five other attorneys who applied to become general counsel. The committee, whose membership is determined by the City Charter, did those interviews in public meetings.

“The Qualifications Review Committee, which includes past general counsels and legal experts, unanimously approved Randy DeFoor’s qualifications for the job," Deegan said. "They believe she will not be subject to any limitations in her role as General Counsel, and that is why I selected her. I would hope that this does not become a political process.”

City also got opinion in 2019 from Florida Commission on Ethics

Freeman filed his legislation as an emergency which would require two-thirds of the 19-member council to agree on taking it up for a vote Tuesday night.

The question is not entirely new to the city. In 2019, the city obtained a written advisory opinion from the state ethics commission because several City Council members were thinking about moving to executive branch positions in the city.

The advisory opinion said based on state law, for a two-year period after someone stops serving as a City Council member, that person cannot represent another person or entity in matters before the City Council. The commission said the intent of that state law is to prevent people from gaining an advantage from serving on a governmental entity, such as City Council, and then using that experience and connections when seeking support from their former entity.

That advisory opinion put some constraints on how former City Council member Lori Boyer interacted with council members in her first two years as CEO of the Downtown Investment Authority. The DIA would send someone other than Boyer to meet with City Council members about DIA matters. If council members wanted to hear directly from Boyer, she still could respond to specific questions.

Deputy General Counsel Lawsikia Hodges told the Rules Committee that model remains a way for a former City Council member to work around the 2019 opinion.

City Council President Ron Salem said in an interview the Boyer model for dealing with the state's ethics opinion doesn't seem to fit with what a general counsel's job is.

"I'm very familiar with the way Lori Boyer handled it," Salem said. "She always came to meetings saying, 'I can respond to your questions, but I cannot provide advice.' General counsel would appear to me to be someone we're going to for advice."

He said the general counsel is "the lead attorney for our city, so I think it is a concern and I would be interested in how we would work around that if that's an issue and if she's confirmed."

During the Rules Committee meeting Monday, council members Rahman Johnson, Joe Carlucci and Michael Boylan also said they'd like to get more clarity about how DeFoor would be impacted before City Council votes on confirming her.

Johnson said if City Council is questioning a former member of the council who is working in a different part of city government, is the former council member "prohibited from advocating or giving advice when they are being questioned?"

Freeman, who filed the legislation seeking a state opinion, said when it comes up for a vote Tuesday, he plans to file a motion to show the Rules Committee as its sponsor.

The city's request to the ethics commission would include asking whether a six-year lobbying ban added to the state Constitution in 2022 applies to DeFoor.

Hodges said the constitutional ban, which voters supported in a statewide 2018 referendum, applies to people who are professional lobbyists acting on behalf of clients who hire them. She said the constitutional restriction specifically says it doesn't affect people who are public officers or employees carrying out their normal duties.

"So the six-year ban would not apply," Hodges told the Rules Committee during its meeting Tuesday.

She said the issue is the state law that was on the books at the time the city sought the 2019 advisory opinion from the ethics commission. That law and its two-year restriction is not limited to professional lobbying activities.

Hodges said the Office of General Counsel can "give best advice based on prior opinions," but the "only way to get true finality on any of these state ethics issues is to write in" for an opinion based on specific facts.

If City Council decides to seek an written advisory opinion, there is no firm timetable for when it would get the guidance. In the case of a formal opinion that gets voted on by the Ethics Commission, the process would require putting the staff's proposed opinion on the agenda of a commission meeting. The commission meets every six to eight weeks.

An informal opinion would not require a vote by the ethics commission, but it still would require time for the commission's staff to do the research of existing opinions for applications to the city of Jacksonville's questions.

This article originally appeared on Florida Times-Union: Mayor Donna Deegan's pick for general counsel raises questions