Jason Gabriel is at it again. Earlier this year, during the fight over Duval County Public Schools’ referendum request, the City of Jacksonville’s general counsel issued a binding opinion that redefined the statutory language authorizing the school board’s proposed referendum. Gabriel famously and cynically suggested that “shall” meant “may,” giving City Council the legal fig leaf it needed to ignore, delay and ultimately kill the referendum despite popular outcry. All of this, beginning with Gabriel’s opening salvo, is currently being challenged in court.
Now Gabriel has issued another legally dubious opinion, this time regarding the sale of JEA. Last month, he stated in a legal memorandum to the City Council that councilmembers are “strictly prohibited” from discussing the JEA sale with the media or their constituents. Like Maxwell Smart in the old Get Smart episodes that run on MyTV, Gabriel says that state law requires a “cone of silence” over any discussion of the JEA sale. Never mind that no other procurement process in the history of Jacksonville has ever required a “cone of silence.” Never mind that Jacksonville’s Chief Ethics Officer, Carla Miller, says that Gabriel is wrong and that councilmembers can discuss the JEA sale with their constituents. Never mind that experts on open-government law like Barbara Peterson have called Gabriel’s legal memorandum “twisted.” Gabriel just issues his memorandum and expects that City Council and the voters to go along.
However, the City Council may finally be showing some backbone. Recently, the body decided to consider hiring its own outside attorney to advise on the sale of JEA. So far, Gabriel has not issued a binding opinion instructing the City Council that it cannot retain its own independent attorney, as he did with the school board. Gabriel is now arguing in court that Duval County Public Schools improperly hired an outside attorney to represent it in the lawsuit it filed to compel the City Council to put the referendum on the ballot as the statute says it shall do. Gabriel acknowledged in that lawsuit that Section 7.01 of the City Charter states that the General Counsel may authorize the school board to hire its own outside counsel if he finds that is necessary. However, he argues that since Section 7.02 of the City’s Charter allows him to issue binding opinions and since he has decided that “shall” means “may”, the school board does not “need” an outside attorney because he has issued a binding opinion that no outside attorney can question.
First, it is useful to recognize the arrogance of Gabriel’s argument. He is saying that he is perfect. He is infallible. He is incapable of making a mistake. Of course, that is not the case. Gabriel is just a man, and like all men, he can make mistakes.
Second, Gabriel’s argument would make him the most powerful person in city government. As Gabriel stated in his memorandum, not even the mayor can challenge his binding opinions. In Motor Club of Iowa v. Dept. of Transportation, the Iowa Supreme Court considered a similar claim by a state attorney general; that court held that “To accord the attorney general the power he claims would leave all branches and agencies of government deprived of access to the court except by his grace and with his consent. In a most fundamental sense such departments and agencies would thereby exist and ultimately function only through him … We believe and hold the attorney general possesses no such dominion or power.”
Third, Gabriel’s position is contrary to our justice system. In America, we have the right to have our cases heard by a judge and jury, then to take an appeal to a panel of judges who will determine if the judge and jury made any mistakes, and then maybe even pursue an appeal to the Florida or United States Supreme Court. But here Gabriel is arguing that he can force the school board, or perhaps the City Council, to accept him as its attorney, issue a binding opinion reaching a legal conclusion against his client’s position, and then prevent his client from hiring an independent attorney to challenge his binding opinion even if it is legally flawed and incorrect.
The City Council should not be intimidated by Gabriel’s bluster. Our city should no longer be held hostage by the legally erroneous opinions of Gabriel where “shall” means “may” and councilmembers can be put under a “cone of silence.” The City Council should challenge Gabriel in court if necessary or by removing him from office as Section 7.06 of the City Charter permits. Our city deserves a General Counsel who respects the law, not one who thinks that he can dictate the law.
Bork is a Jacksonville-based attorney with more than 20 years’ experience.