The Office of General Counsel says it will file the Jacksonville City Council’s request by Sept. 1 for the state Commission on Ethics opinion that could be a pivotal factor in the confirmation of Mayor Donna Deegan’s pick for the city’s next top attorney.
In a workshop Aug. 28 called by Council President Ron Salem, interim General Counsel Bob Rhodes and three other city attorneys outlined 13 questions Council wants the commission to answer to determine whether the two-year lobbying moratorium on former public officials in state statutes and the Florida Constitution would restrict or inhibit DeFoor, a former Council member, should she be confirmed general counsel.
The top question is whether giving legal advice is considered lobbying or is representation of “another person or entity for compensation.”
The Council’s request will also address a range of potential issues including outcomes should DeFoor act as a mediator, litigator or negotiator on behalf of Jacksonville’s consolidated government.
Salem said Aug. 28 that unless the overall sentiment of Council changes, he will defer Resolution 2023-0584 so Council members have the opinion in hand when they make their final decision on DeFoor’s confirmation expected Oct. 20.
That could push DeFoor’s confirmation process into mid-November.
The workshop was the latest in a series of events that have put some Republican members of the Council at odds with Deegan, a Democrat, since she announced Aug. 9 that she selected DeFoor as general counsel.
During the workshop, Salem said he was “very disappointed” that the Deegan administration did not brief him that it was seeking a similar opinion from the state ethics commission.
Deegan’s opinion request was drafted by Burr & Forman attorney Jason Gabriel, who is a former city general counsel and Deegan’s appointed chair of the five-member committee that recommended DeFoor’s appointment.
The request was sent to the commission Aug. 22, and asserts DeFoor should have no restrictions.
According to Salem, the administration sent him a copy hours before the Council was to take an emergency vote on the resolution introduced by Rules Committee Chair Terrance Freeman.
Salem said during the meeting that he would have supported sending one request to the commission from the city had he known the mayor's office was also planning to seek an opinion.
“We are here today sending a separate opinion because I had no notice that was occurring. No one came over to brief me on that opinion (request),” Salem said at the workshop.
“It just appeared on my desk.”
Despite his support to defer DeFoor’s confirmation process to wait for the commission’s input, Salem said he is personally “a no-vote.”
“I’ve told Randy that. I’ve told the mayor that. I have some concerns about her temperament that she’s exhibited at many Council meetings and committee meetings toward me,” Salem said. “And those videos are available if anybody wants to watch them.”
“I like Randy. I like her husband. I consider her a friend. I saw her the other night and we chatted together,” Salem said.
“I can separate that friendship from the ability to serve as general counsel.”
If confirmed, DeFoor would lead an office of 48 attorneys that represent the mayor’s administration, Council, the city’s constitutional officers, independent authorities and Duval County Public Schools.
A corporate attorney for decades, DeFoor has been senior vice president and national agency counsel for Fidelity National Title Group since 2013 and has worked for the financial services company since November 2011, according to her resume submitted to the city.
The city charter requires a 13-vote supermajority of Council to confirm the mayor’s general counsel appointee.
Council members Jimmy Peluso, a Democrat, and Matt Carlucci, a Republican, reiterated their support for DeFoor at the workshop.
Democratic Council member Tyrona Clark-Murray said she didn’t think DeFoor would have a conflict to serve.
At least three other Council members said Aug. 28 that they were ready to cast their ballots.
Council member Nick Howland, a Republican, said he wanted the commission’s opinion, not because it could convince him to support DeFoor’s appointment, but to inform any elected leader who might want to seek the job in the future.
“The general counsel is the glue that holds the consolidated government together and really the law of the land until overturned by a court of appropriate authority,” Howland said.“As much as I like Mrs. DeFoor and think she’s probably a very effective corporate attorney, I don’t think she’ll be effective as general counsel.”
Carlucci said it would be a mistake to vote before the commission issues its opinion.
“I think it leaves a bad mark and a bad precedent,” he said. “It almost shows that we’re not acting in good faith.”
The workshop came less than a week after Deegan held a news conference at City Hall claiming the Duval GOP and political consultants who worked with former Mayor Lenny Curry were supporting a “smear campaign” meant to pressure Council members to vote against the selection.
Rhodes’ 90-day interim appointment will end Sept. 30, according to the charter.
Deegan could appoint another 60-day interim general counsel by Oct. 1 to replace Rhodes.
Gabriel said Aug. 23 that DeFoor could be legally named interim before her confirmation is complete.
The mayor has not indicated whether that is her plan, but Council members appeared to be exploring that scenario.
Peluso said if DeFoor is named interim or confirmed before the opinion, she could recuse herself from any action or interaction with Council that could be a conflict.
City attorneys said Aug. 28 that DeFoor is allowed to address Council or answer questions on issues if a member requests her opinion, according to a 2019 opinion by the commission.
If the mayor appoints DeFoor as interim or the Council confirms her appointment before the commission’s opinion is released, she may have to be mindful of how she operates, Rhodes told Council members.
Freeman, who will lead the Rules Committee confirmation hearing, questioned Rhodes on what could happen with legal matters like city-negotiated contracts, a stadium renovation deal with the Jacksonville Jaguars or collective bargaining actions with labor unions worked on by DeFoor should the commission release an unfavorable opinion.
Rhodes said any action DeFoor took would be weighed against the commission’s opinion.
“With respect to actions taken that might be contrary to the ethics opinion, my sense is, and we haven’t researched (this) thoroughly, those actions would be subject to invalidation because they were taken without authority … and they may be in question,” Rhodes said.
Former City Council member Randy DeFoor’s unclear path to general counsel confirmation. The uncertainty and skepticism by some Jacksonville City Council members toward their former colleague’s appointment by Mayor Donna Deegan to be the city’s next top attorney could push her confirmation vote into mid-November. Here is the timeline:
Aug. 9: General Counsel Qualifications Review Committee recommends and Deegan announces former Council member Randy DeFoor as her appointee for general counsel.
Deegan files request with State Commission on Ethics for an opinion on any restrictions or prohibitions DeFoor could have serving as general counsel as a former elected official.
Deegan introduces Resolution 2023-0584 to Council that would confirm DeFoor’s appointment as general counsel.
Council President Ron Salem receives a copy of Deegan’s request for the State Commission on Ethics.
Council votes 14-3 to submit its own request for an ethics opinion from the state commission.
Aug. 23: Deegan holds a news conference claiming “smear campaign” by GOP political consultants against DeFoor’s nomination.
Aug. 28: Salem holds a Council workshop to finalize its request to state commission.
Sept. 1: Council’s request is expected to be sent to the state commission.
Sept. 18: Council Rules Committee’s scheduled hearing and vote on DeFoor’s confirmation if it’s not deferred by the Council president.
Sept. 26: Council is scheduled to take final action on DeFoor’s confirmation without a deferral.
Sept. 30: Interim General Counsel Bob Rhodes’ 90-day term ends.
Oct. 1: Deegan is expected to seat a new interim general counsel for 60 to 90 days.
Oct. 10: Council meeting prior to state commission meeting.
Oct. 20: State commission is expected to issue its opinion on DeFoor’s eligibility.
Oct. 21: Deadline for Council to reject, confirm, withdraw or defer DeFoor’s nomination legislation.
Oct. 24: First Council meeting after state commission meeting.
Nov. 6: First Council Rules Committee meeting after the state commission meeting where DeFoor’s confirmation could be heard following a deferral.
Nov. 14: Council meeting where it could take a final vote on DeFoor’s confirmation.
Here are 13 questions that lawyers from the Office of General Counsel intend to include in City Council’s request to the State Commission on Ethics for an opinion on Randy DeFoor’s eligibility to serve as the city’s next top attorney:
No. 1: Is giving legal advice, either in direct response to a Council member request or unsolicited to the City Council or a Council member, considered “lobbying” or “representation” of “another person or entity for compensation” as such terms are used in Art. II, Section 8(f) of the Florida Constitution or section 112.313(14), Florida Statutes and defined in section 112.312(22)and 112.3121(11) (12), Florida Statutes?
No. 2: Does the Florida Constitution or Florida Statutes prohibit a former member of the City Council, who is serving as General Counsel for the city of Jacksonville, from appearing before the City Council or any of its committees when requested to do so by the City Council or individual Council member?
No. 3: Does the Florida Constitution or Florida Statutes prohibit a former member of the City Council, who is serving as General Counsel for the city, from appearing before an individual member of the City Council at the Council member’s request?
No. 4: Is presenting the Office of General Counsel’s budget to the City Council for approval, including a request by the General Counsel for additional attorney positions or increases in salaries (possibly including the General Counsel’s own salary) or other budget enhancements, considered “lobbying” or “representation” defined in the Florida Constitution or Florida Statutes?
No. 5: Is representing other City agencies before the City Council including, but not limited to, the Jacksonville sheriff, the executive branch agencies, the clerk of court, the property appraiser and the tax collector concerning certain settlement agreements (exceeding specified dollar amount thresholds), which are required to be approved by the City Council, considered “lobbying” or “representation” of those persons or entities defined by the Florida Constitution or Florida Statutes?
No. 6: Is representing other city agencies before the City Council on procurement matters where City Council authorization is necessary before such contracts can be executed considered “lobbying” or “representation” defined by the Florida Constitution or Florida Statutes?
No. 7: Are the separate elected officers, agencies and branches of government (including departments or divisions within the Executive branch) considered “clients,” as that term is used, but not defined, in the definition of “represent” in Florida Statutes, considering that the Office of General Counsel generates bills and separately charges legal fees to each separate “client”?
No. 8: Can a candidate who must be confirmed by the City Council, and who is a former Council member, lobby current Council members for his or her appointment when the City Council must approve the candidate’s salary as part of the budget?
More questions to be finalized and added to the request:
Could a former City Council member confirmed as general counsel have restrictions or conflicts of interest:
Serving as a mediator on behalf of the city?
Related to prior relationships with executive City Council aides? Issuing binding legal opinions for the city?
Related to prior relationships with the city’s independent authorities?