On Rolling Stones Day in Jacksonville, school tax advocates can’t get no satisfaction

Former Jacksonville General Counsel Jason Gabriel. Image via AG Gancarski.

The City of Jacksonville is celebrating Rolling Stones Day, with the rock warhorses in town for a concert.

Meanwhile, local advocates for a 1/2-cent sales surtax to benefit local schools, to borrow a phrase, “can’t get no satisfaction” from City Hall.

The Duval County School Board and allies have pushed for a November 2019 referendum vote; however, the city position has been that the City Council ultimately decides if and when the matter goes before voters.

Council committees deferred action on the tax vote request Tuesday, with the Council President proposing a joint meeting in October, which would make a 2019 vote a dead letter.

An email sent Friday from General Counsel Jason Gabriel to City Councilman Garrett Dennis puts the matter in relief.

“It’s the law of Florida, not our opinion, that places the matter before the Council for a vote, prior to it appearing on the ballot,” the city lawyer wrote.

There had been some question as to whether a previous memo from the Office of General Counsel constituted a binding opinion. Gabriel contends that’s not germane.

Gabriel writes that “the question should be whether the memo reflects an accurate reading of the statute (ie, that the Council is the correct body to vote on placing the tax measure on the ballot); and it is.”

“It is the Florida Statute, not our office’s memo, which requires the Council to act on whether to place the matter on the ballot or not. Regardless of our office’s opinion, the City Council must vote on the matter,” Gabriel adds.

“Any change to that format can be amended by the Legislature, and as noted in the memo, the Legislature has in fact empowered school boards to put some items on the ballot directly (without the need to go to council). It could have done so here for the discretionary sales surtax, but it did not. Council was charged with that vote,” Gabriel notes.

The email also takes note of “statutory, constitutional and separation of power analyses [and] the as-yet unexplored and unique relationship the Charter creates between the Consolidated Government and the School Board by making it an independent agency of the City.”

Consolidation was a half-century ago.

Gabriel notes that Council sets School Board districts and compensation. adding that “with respect to the sales tax issue, and the resultant fiscal ramifications, the state of the law (both statutorily and locally) gives Council the final vote on approving the measure for the ballot.”

The Duval County School Board, per the Florida Times-Union, wants outside counsel. However, their dreams may be dashed, given the attorney’s interpretation of statute.

“General Counsel Opinion 97-1 concluded that the Charter provides for no appeal from an opinion issued by the General Counsel. In that opinion, the General Counsel explicitly stated that in a case where the City Council and the Mayor had different views as to the power of the Mayor, neither the Mayor nor the City Council would have the authority to hire an attorney to appear in court to take a legal position different than that taken by the General Counsel. The same would be true for a General Counsel opinion concerning the powers of any officer or agency of the Consolidated Government,” Gabriel writes.

Gabriel affirmed that interpretation Friday morning in a separate exchange.

“As is the case with all of the independent agencies of the consolidated city, of which the School Board is one, their chief legal officer is the General Counsel. I hadn’t heard about their request until the Times-Union article, however I’ll evaluate it when I receive it and I do have a meeting set with the the Chairwoman of the Board next week and I look forward to further discussing the duties of the School Board and the Council with respect to this important matter,” Gabriel asserted

Having established, again, his position that OGC is supreme, the lawyer draws “the conclusion that the Legislature granted the City Council the power to decide when and whether to place a sales surtax referendum on the ballot.”

Gabriel has defended the prerogatives of City Hall against independent agencies before. The Police and Fire Pension Fund attempted to engage the Attorney General in a dispute with the Mayor’s Office, but the General Counsel position was that the PFPF had no standing to do so.

It’s theoretically possible that Attorney General Ashley Moody could have a different take, but Gabriel’s take here likewise is that the School Board lacks a platform to make that case.