A.G. Gancarski
The cold war between the executive branch and the police and fire pension fund in Jacksonville keeps heating up on the legal front. At the heart of it all: questions about the city charter, the function of independent authorities, and whether the pension fund is co-equal, in legal terms, with the government of the city itself.
On Wednesday, Jacksonville Mayor Lenny Curry notified Attorney General Pam Bondi of a letter from his general counsel, Jason Gabriel, explaining why the Jacksonville Police and Fire Pension Fund was out of line in writing Bondi, without Gabriel’s consent, to have her weigh in on whether the JPFPF’s “senior staff voluntary retirement fund” is illegal.
The unwarranted action from the JPFPF, wrote Curry, “predictably follows the Binding Legal Opinion of the General Counsel, which concluded that the JPFPF Board lacked authority to establish a ‘senior staff voluntary retirement plan’.”
Curry and Gabriel contend that the authority of the general counsel supersedes independent authorities, such as the JPFPF.
In his letter Thursday, Gabriel made the case, charging that the JPFPF, by contacting Bondi without his express authorization, circumventing lines of authority, has in effect gone against the city’s charter.
“The General Counsel has the obligation and duty to represent the JPFPF Board. The Board has the obligation and duty to use the General Counsel as its chief legal counsel, and to act in accordance with, and not contrary to, the binding legal opinions of the General Counsel,” Gabriel wrote, in a response that aims at the heart of the JPFPF’s assertions of functional autonomy.
Gabriel writes that matters related to the JPFPF “are matters of local government more appropriately left to the Consolidated Government and its chief legal officer to resolve. However, in the event that your office chooses to opine on this matter, because the significance of any determination is of paramount importance to the City, I write to provide the Consolidated Government’s official position on the matter.”
“Centralized legal services,” writes Gabriel, are a cornerstone of Jacksonville government, and, per the city’s charter, a “chief legal officer” is to offer “ultimate legal authority responsible for providing consistent, comprehensive and unitary legal advice to Jacksonville’s vast government.”
The JPFPF does have the right to “outside legal counsel,” but with a caveat: “only after the General Counsel certifies compliance with the Charter and makes a written finding of necessity.”
That written finding was circumvented by the JPFPF, which refused to communicate with the general counsel before writing Bondi, despite numerous requests for drafts of that letter to the AG.
Gabriel contends that, contra the JPFPF assertion, his authority is “not disqualified based on a conflict of interest from representing the City in a lawsuit against the JPFPF Board when such conflict was self-created by the JPFPF Board.”
The “binding legal authority” of his office, Gabriel writes, precludes the JPFPF’s stated “need” for outside counsel, if “purpose of that outside counsel is to take a legal position inconsistent with the General Counsel’s binding legal opinion.”
Gabriel does not discount the JPFPF’s right to “outside counsel to assist with specialized areas of law or to handle special transactions or litigation”; however, he takes issue with what is a clear usurpation of charter and the legal authority it grants him. Attempts to go beyond clearly delineated guidelines in the charter, writes Gabriel, “eviscerate the requirements the Charter imposes on independent agencies.”
The problem? “The JPFPF Board, through outside legal counsel and with no reference to any authority, would have the Charter create and the Consolidated Government exist as two separate entities: (1) the JPFPF Board, and (2) every other board, agency and officer of the Consolidated Government.”
“The independent agencies are not separate agencies of the State of Florida. They are agencies of the City,” Gabriel continues.
Furthermore, “dangerous precedent would be established if the JPFPF Board was successful in disqualifying the General Counsel from a lawsuit which arose solely out of JPFPF’s failure to abide by the Charter.”
The JPFPF, continues Gabriel, has flouted legal opinions by successive general counsels.
Gabriel continues by taking aim at a 1987 letter from James Harrison, a previous general counsel, which is the crux of the JPFPF claims of autonomy, writing that the 1987 letter fails to “explain why the police and fire pension board of trustees should be treated differently than the general employees pension board of trustees, even though at the time, each board was a division or section within the executive branch.
“Whatever reasons may have existed at that time for the issuance of Harrison’s letter, the Legislature has since changed the equation. The Legislature, by amending the Charter, has unequivocally granted independent agency status to the JPFPF Board. With that status comes the Charter’s legal obligations, including the obligation that the JPFPF Board recognize the General Counsel as its chief legal officer. Harrison’s letter is obsolete and of no effect or validity,” Gabriel writes.
“The General Counsel’s concurrent representation of the JPFPF Board and the rest of the Consolidated Government does not create a conflict of interest. Any alleged apparent conflict of interest during pending litigation is due to the JPFPF Board’s noncompliance with the requirements of the Charter,” Gabriel concludes.
The Curry administration has sought to bring independent boards and commissions into line. The JPFPF is the biggest challenge yet.
