Last week, Folio Weekly published my Backpage Editorial regarding the ethics and legality of the Jacksonville General Counsel’s opinion stating that Duval County Public Schools must first obtain the approval of the City Council and the mayor before its sales tax referendum can be placed on the November 2019 ballot. Then, last week, Mayor Lenny Curry stated that he wants the referendum to be delayed until November 2020, and that he would not approve it unless the school board gives him year-by-year projections for the sales tax revenue, the total cost for the work, and a cost analysis per location including transparent accounting. However, in my opinion, in making these demands, Curry is violating the Florida Constitution and the Florida Statutes.
Turning first to the Florida Constitution, Article IX, Section 4(b) states that “the school board shall operate, control and supervise all free public schools … and determine the rate of school district taxes.” As such, it is clear that Curry is violating the Florida Constitution when he attempts to control the school board’s maintenance plan. Simply put, he has no role in operating, controlling or supervising our free public schools or in determining the rate of school district taxes.
Considering Florida statutory law, Curry is first violating Section 1001.42, which sets forth a school board’s power in Florida. Of particular importance here is subpart 11(c): “Maintenance and upkeep of school plant. Provide adequately for the proper maintenance and upkeep of school plants, so that students may attend school without sanitary or physical hazards, and provide for the necessary heat, lights, water, power, and other supplies and utilities necessary for the operation of the schools.”
As such, it is the school board’s duty to make sure that students have adequate power and utilities, the major problem for which the school board referendum was conceived to address. Then, Part 12 of Section 1001.42 makes clear that the school board alone has the financial power to assure that students have adequate educational facilities. Consequently, Curry is violating section 1001.42 when he attempts to control the terms of the school board’s maintenance plan or its power to adequately finance our county’s educational facilities.
Second, Curry is also in violation of Section 212.055(6). Subpart (a) states that the school board can levy sales taxes. Subpart (b) states that it can prepare a resolution that shall include a brief and general description of the project that the sales tax will fund. Subpart (c) states that the school board will assure that the school board’s plans for using the sales tax revenue satisfy the other requirements set forth in that subpart. Finally, subpart (d) states that the Department of Revenue shall distribute the money collected from the sales tax to the school board.
As such, it’s clear that the statute gives the school board all of the powers and duties to prepare both the referendum and the plans for spending sales tax revenues. Significantly, subparts (b) and(c) make it clear that the school board is supposed to prepare the resolution and the plan for the use of the sales tax revenues before the resolution and plan are even sent to the City Council and the mayor to be put on the ballot. Accordingly, Curry is violating this statute when he claims that he can prevent the school board’s referendum from being placed on the ballot unless he approves of the school board’s maintenance plan.
As for the City Council and the mayor’s duty to choose the election date, the General Counsel’s opinion correctly notes that they have that power under section 212.055(6). However, they do not have the absolute discretion to choose any date for the election. In 1998, the Florida Attorney General made that clear in in Att. Gen Opin. (AGO) 98-29, which states, “It should be recognized, however, that it is the school board, not the county, seeking to impose the surcharge and, accordingly, the board of county commissioners should work together with the school board to determine a date that is amenable to that governmental body.” According to the Cambridge Dictionary, the word ‘amenable’ means ‘willing to accept.’ Thus, the Attorney General’s opinion establishes that the City Council and the mayor should be willing to accept the School Board’s suggestion that the referendum vote should occur this November.
Based on the foregoing, it is my opinion that Curry is violating the Florida Constitution and Florida statutory law when he attempts to hold the school board’s referendum hostage until his demands are met.
Bork is a Jacksonville-based attorney with more than 20 years’ experience.