Special counsel Stephen Busey says enforcing them in court would be expensive and take months.
The lead attorney advising the Jacksonville City Council’s investigation into last year’s JEA sale attempt recommends dropping the subpoenas for companies linked to Mayor Lenny Curry’s former political consultant Tim Baker.
Stephen Busey told the Council’s Special Investigatory Committee into JEA on Nov. 30 that while he thinks the subpoenas would uncover documents showing communications about the JEA sale among Baker, bidder NextEra Energy Inc. and the Curry administration, enforcing them in court would be expensive and take several months.
The committee appeared to agree with Busey’s recommendation but took no action.
Busey, an attorney with Smith Hulsey & Busey, told the committee that Baker declined through his lawyer to respond to subpoenas approved by the Council Rules Committee on Oct. 20.
At issue is Baker’s work for Florida Power & Light, whose parent company, NextEra, offered to pay $11.05 billion for JEA in the city-owned utility’s canceled invitation to negotiate in August 2019.
Busey said in October there were “close connections” between the city and FPL in the lead up to and during the city-owned electric and water utility’s ITN process.
Council investigators were looking for evidence if Baker was advising JEA’s senior leadership team on the ITN while working for FPL.
“We think that’s a conflict. We think there was an awful lot of communications going on between Mr. Baker and the (Curry) administration and Florida Power & Light at the same time,” Busey told the committee. “We tried to get those communications and Mr. Baker has declined to provide them. NextEra and FPL have declined to provide them.”
Busey confirmed in a phone interview after the meeting he was referring to the Curry administration in his comments to the committee.
The Rules Committee voted 4-3 to issue subpoenas for Baker and four of his companies — Bold City Strategic Partners LLC; Conventus LLC; Data Targeting Research LLC; and Timothy Baker Consulting LLC.
To request Florida’s 4th Judicial Circuit Court step in to enforce the subpoenas, the full Council would have to pass emergency legislation. It’s unclear if there would be enough Council members who support pursuing the Baker subpoenas to get the required 10 votes.
By the committee taking no action to request the emergency legislation, the matter would die.
“It would be better to actually see the communications between Mr. Baker and FPL regarding what he was doing in connection with the city of Jacksonville. We don’t have the evidence,” Busey said. “The question for the committee is whether it is worthwhile to enforce the subpoenas through a judicial process.”
According to Busey’s Oct. 8 memo to Council, Baker attended a July 10, 2019, JEA senior leadership team meeting at The Club Continental in Orange Park at the request of then-utility CEO Aaron Zahn.
That’s where plans were drafted for the resolution that the JEA board would vote on to issue the ITN at its July 23, 2019, meeting.
Zahn was fired with cause by the former JEA board Jan. 28 for his role in the ITN.
According to Busey, Bold City Strategic Partners’ contract with FPL was active Dec. 21, 2017, the day after the city issued a privatization request for proposals for JEA.
Former JEA Treasurer Joe Orfano told Busey in a September interview that JEA privatization was a “major component” of the request for proposals to provide financial advisory services, according to the special counsel’s Sept. 25 memo to the Council committee.
Baker told Council investigators during his sworn deposition his FPL consulting contract was active from Dec. 21, 2017, through July 31, 2019.
Links may be in report
Busey’s recommendation to drop the subpoenas comes as his team works to complete its final report to the investigatory committee by early January.
He said Council investigators can complete the report without the information sought in the subpoenas.
But that doesn’t mean possible links between Baker, the Curry administration and the JEA sale will be missing from the document.
During the Nov. 30 meeting, Busey told Council member Randy DeFoor that the investigation revealed documents and communications that show Baker “reviewed and commented on” JEA’s July 23, 2019 board of directors meeting agenda before the public meeting.
“We have a lot of evidence regarding FPL’s interest in the acquisition of JEA and its hiring of lobbyists in Jacksonville. So we can pretty much conclude, fairly, what was happening in terms of the administration and FPL’s interest in collaborating regarding the sale of JEA. We propose to make those inferences in the report.”
Busey said his team and city attorneys plan to finalize the report by mid-December and deliver it to the committee and public after Jan. 1.
A spokesperson for the Curry administration did not immediately respond to a request for comment Nov. 30.
Baker said in a text message after the meeting that he “knew nothing” about the ITN before it was issued and “answered every single question and provided all responsive documents about the mayor, his staff, Aaron Zahn and any other JEA staffer.”
Baker said Busey’s recommendation to drop the subpoenas is “in direct conflict” with his advice to pursue documents in October.
“He abandoned the pursuit because he was going to lose in court because the subpoenas were an unconstitutional overreach into the private affairs of a citizen,” Baker wrote. “Council was wise to make the decision they did tonight and it’s unfortunate their attorney hasn’t been direct and honest with them all along.”
Busey said the report will be approximately 100 pages including appendices.
The special counsel will also provide a 350-page chronology of the actions that led to and ended the attempted sale with hyperlinks to online documents supporting assertions in the report.
The committee voted 3-0 on Nov. 30 to amend the special counsel’s budget to $1.85 million to complete its work.
That brings the Busey team’s budget to the financial cap approved by the full City Council in October 2019.
Busey told the committee his team intends to complete the investigation under budget but still has to complete fact-checking interviews with former JEA CEO Paul McElroy, utility Chief Legal Counsel Jody Brooks and former JEA board chair and lobbyist Mike Hightower.
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