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Jax Daily Record Thursday, Mar. 15, 201809:00 PM EST

JEA CEO refuses to testify under oath to City Council committee exploring possible sale of utility

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Paul McElroy and city Chief Administrative Officer Sam Mousa refuse to take an oath on advice of city general counsel.
by: David Cawton Associate Editor

A City Council committee exploring the possible sale of JEA voted Thursday to subpoena utility CEO Paul McElroy after he declined to speak to the committee under oath.

Along with McElroy, city Chief Administrative Officer Sam Mousa also refused to take an oath.  A motion by committee member Garrett Dennis to subpoena Mousa was withdrawn.

The five-member committee is chaired by council member John Crescimbeni.

McElroy and Mousa were asked to answer questions about issues regarding a potential sale after an outgoing JEA board member suggested doing so Nov. 28.

Council President Anna Lopez Brosche created the committee to review the aspects and impact of a potential sale.

McElroy was called to speak about a decade of declining revenue at JEA despite an increase in the number of customers and about the future financial health of the utility.

When asked if he would take the oath, McElroy said despite his “utmost respect for this body,” he would decline.

McElroy told the committee he was “deeply saddened, disappointed” and that “at the advice of counsel, you heard Mr. Gabriel here today, and other counsel, I will not take the oath at this time.”

Jason Gabriel is the city’s general counsel. Before anyone was asked to speak, Gabriel told the committee that those asked to testify should first consult an attorney because lying under oath, knowingly or not, could be seen as committing perjury.

After the meeting, McElroy said he believed the requirement to speak under oath was “sprung” on him and others without warning.

“The fines for perjury, as pointed out in there, is a third-degree felony, it’s five years in prison and a $5,000 fine,” he said.

McElroy said he provided all documentation the committee had requested up until Thursday and he was not prepared to take an oath without counsel.

“One question I might ask the committee is ‘why were people able to provide written testimony and not be sworn in?’ ” he said.

According to the meeting agenda, Gabriel, Mousa and McElroy were asked to speak.

As an attorney, Gabriel does not have to swear under oath.

McElroy and Council Auditor Kyle Billy submitted documents, but the committee did not indicate they had to do so under oath.

McElroy said there would be “too many consequences and confusion” if he had spoken during Thursday’s hearing without proper counsel or notice, “leading to years of potential legal issues.”

“We’re just here trying to serve, we’re just trying to raise the issue, we’re trying to bring information,” McElroy said.

McElroy said JEA officials were “just trying to share information the best we can for the hardworking people of JEA.”

He declined to say if he would return to the committee, if asked, referring to his statement that he would not do so “at this time.”

In response to his action, the committee voted to subpoena McElroy to appear before them March 29 to answer questions about the utility’s finances and a recent report issued by Public Financial Management Inc. examining a potential sale.

If he chooses to speak, he would have to do so under oath. If he declines to appear, the matter could be referred to the State Attorney’s Office.

After the meeting, Crescimbeni rebuffed McElroy's claim of being caught off guard, saying it should not have been a surprise.

"The conversation at the last meeting was to put people under oath," he said.

Mousa, who also refused to speak, told the committee he had never lied to a council body in his 31 years of public service.

He attended to answer questions about a Request for Proposal issued by Public Financial Management on behalf of the city in December seeking strategic financial advisers.

While the RFP did not mention JEA by name, council members had questioned the mayor’s office about issuing an RFP without making the council aware of it.

“No ma’am, I refuse to take that oath,” said Mousa to the court reporter inside council chambers at City Hall.

Council member Garrett Dennis said he wanted more clarity on whether the committee wanted to require all speakers to take an oath before any of them spoke, a suggestion the body made at its March 8 meeting.

The suggestion of using an oath and if needed, subpoena power, was to assure truthful testimony, according to Dennis.

Gabriel gave his opinion through a memo Wednesday and again in person Thursday.

He said while the power to subpoena and administer an oath is available, “it puts this in the posture of quasi-litigiousness,” saying the oath is typically reserved for judicial proceedings and not policy issues.

“You’re not prohibited from using the power of oath and subpoena in a policy situation, but we would ask that you use that power with deliberation and pause,” he said.

While Dennis and council member Danny Becton said they were suspicious that some speakers might not present truthful testimony, Mousa said it would have no effect on his.

“I have never and will never provide anything other than truth to this committee or the council,” said Mousa.

Council member Matt Schellenberg, the liaison to JEA, said he had never received inaccurate information from the administration during his nearly seven years in office.

He said the discussion was inappropriate.

“You either believe what they say or you don’t,” said Schellenberg, who was visiting the committee.

Dennis eventually offered a motion to require the oath, which passed 5-0.

Mousa was dismissed from the committee after declining to speak.

Marsha Oliver, the mayor’s director of public affairs, said Mousa was following the advice of Gabriel to not testify without an attorney present.

Oliver did not clarify if Gabriel was speaking as Mousa’s lawyer or simply giving advice to a city employee as the city’s top attorney.

“You’ve heard council members say, for as long as they’ve worked with Mr. Mousa, they’ve never had any doubt or concern about his credibility in any kind of way,” Oliver said. “He’s spent 31 years here in the city government.”

Oliver said she could not speculate whether Mousa would testify with an attorney present if asked again to speak.

Brosche, a member of the committee, said Mousa’s decision not to speak under oath made enough of a statement to the general public.  

Brosche, Becton, Crescimbeni, Dennis and Joyce Morgan serve on the committee, which will meet again at 3:30 p.m. March 22 at City Hall.

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