Is Jacksonville’s outside counsel hire legal? Donna Deegan’s staff says so

As Jacksonville Mayor Donna Deegan’s Office continues to deal with questions around an alleged “illegal gun registry,” other legal questions linger about hiring outside counsel to represent members of city government under scrutiny.

At issue: whether General Counsel Michael Fackler has followed proper procedure in enlisting a relative’s firm for outside representation of city employees amid a probe from the 4th Circuit State Attorney.

That probe has seen subpoenas issued to Roy Birbal, former public safety chief Lakeisha Burton, Chief Administrative Officer Karen Bowling, Steven Long, Pat McCollough, Kelli O’Leary, former acting General Counsel Bob Rhodes, Facilities Manager Mike Soto, and former city lawyer and current City Council lawyer Jason Teal.

Deegan spokesperson Phil Perry told Florida Politics that “communications with the Bedell firm regarding their hire have all been oral.”

City Charter Section 7.01 sets the following provision regarding the hire of outside counsel: “The General Counsel may authorize the City to engage outside private counsel upon written certification by the General Counsel of its necessity, and such engagement shall be in accordance with procedures set forth by the City Council.”

Perry said everything is legal, or at least will be once the engagement letter is drafted to memorialize the oral accord.

“The purpose of this Charter provision is to ensure that the General Counsel approves the retention of outside counsel across the whole of Consolidated Government. In this case, General Counsel Michael Fackler approved the retention of Bedell in this matter and the written certificate of need will be the engagement letter, which is forthcoming.”

Fackler’s father-in-law Hank Coxe is a member of the Bedell firm, which raises potential questions — not in local ordinance, which is agnostic about nepotism, but in state law, which is more explicit.

Florida Statutes 112.3135 defines a father-in-law as a “relative.” And it sets restrictions on a public official, such as a General Counsel, hiring a relative.

“A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which the official is serving or over which the official exercises jurisdiction or control any individual who is a relative of the public official,” state law reads.

“An individual may not be appointed, employed, promoted, or advanced in or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual or if such appointment, employment, promotion, or advancement is made by a collegial body of which a relative of the individual is a member.”

There are provisions for temporary employment in the case of emergency, however. An “agency may prescribe regulations authorizing the temporary employment, in the event of an emergency as defined in s. 252.34(3), of individuals whose employment would be otherwise prohibited by this section.”

An emergency in this case isn’t a public relations crisis or a legal controversy, but “any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property.”

Melissa Ross, also a spokesperson for the Mayor’s Office, is confident everything is above board.

“The Bedell firm will be paid on a monthly basis at an hourly rate. Additionally, the Office of General Counsel ran the Bedell hire by the local and state Ethics offices and was advised that there is no violation of statute.”

Via Fackler and the Mayor’s Office, local Ethics Chief Kirby Oberdorfer produced opinions from past Attorney General and Ethics Commissions making the case that the hiring of law firms presented no conflict. We still seek details into the hourly rate, whether any caps apply, which budgetary subfund will pay for it, and if there will be an appropriations bill filed in the City Council. We will update with those details once provided.

As the Florida Bar notes, state law and case law allows for public funding of legal defenses of public officials accused of misdeeds in their official capacities, per Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981).

But some caveats apply.

“If a public officer is charged with misconduct while performing his (or her) official duties and while serving a public purpose, the public has a primary interest in such a controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct.”

City Council member Rory Diamond, a lawyer who is no fan of the Mayor’s Office, said “Florida law does not provide for payment of criminal defense attorneys up front.”

“Only after exoneration when acting in one’s official capacity,” he added.

Absent a formal engagement letter, the terms of the deal between the General Counsel and his father-in-law’s firm are murky. The city is in uncharted waters with this investigation, and that seems to extend to the arrangement for outside counsel itself.

Stakes are high, both for the principals and the taxpayers.

Florida Statutes 790.335 bans registries under threat of criminal and civil penalties, including potential “felony of the third degree” charges and “a fine of not more than $5 million” via a civil action from the Attorney General.

Per the law, a “list, record, or registry of legally owned firearms or law-abiding firearm owners is not a law enforcement tool and can become an instrument for profiling, harassing, or abusing law-abiding citizens,” and “is an instrument that can be used as a means to profile innocent citizens and to harass and abuse American citizens based solely on their choice to own firearms and exercise their Second Amendment right to keep and bear arms as guaranteed under the United States Constitution.”

The Legislature holds that “law-abiding firearm owners whose names have been illegally recorded in a list, record, or registry are entitled to redress.”

The language suggests that may include a list of gun owners carrying weapons into city buildings like City Hall and the Yates Building, whatever the security concerns behind the policy may have been.

“No state governmental agency or local government, special district, or other political subdivision or official, agent, or employee of such state or other governmental entity or any other person, public or private, shall knowingly and willfully keep or cause to be kept any list, record, or registry of privately owned firearms or any list, record, or registry of the owners of those firearms.”

The Deegan administration has suggested the policy was formulated under former Mayor Lenny Curry, producing a draft document from the last day of Curry’s term from Soto, for which neither Curry’s nor Deegan’s teams claim responsibility.

The draft language appears to have been finalized during Deegan’s first month in office, though. And political enemies of the current Mayor continue to message heavily on and off record about the brewing imbroglio.

Curry spoke on the issue Thursday morning.

“Donna Deegan has rushed to spin a false narrative that not only impugns my reputation but also tarnishes the integrity of the employees I was proud to lead and serve alongside for eight years. It’s deeply troubling to see the current Mayor and members of her administration lend credibility to these unfounded claims. Their actions not only perpetuate falsehoods but also undermine the trust and safety of our community by stoking division and fear,” he said.

“It’s time to stop the partisan blame game and show some accountability for the massive scandal that is unfolding under her watch. I call on Mayor Deegan to apologize to the news media and to the people of Jacksonville for peddling fake news and baseless narratives to shirk responsibility.”