Bad Precedent

Folio Weekly has published two of my guest editorials in just as many weeks, both regarding the ethical and legal issues surrounding the city of Jacksonville’s obstruction of Duval County Public Schools’ proposed November 2019 referendum. In my opinion, these problems, along with the even more serious problems discussed in this third guest editorial, mean that the school board should act now to get its referendum on the ballot. What happens in Duval County in the next two weeks will have statewide implications for public education.

Let’s start with the first glaring problem with the Office of General Counsel’s opinion that only the Jax City Council has the authority to call the referendum: There is no opinion! What the General Counsel’s office has been passing off as a binding opinion is really nothing more than a memorandum. That’s it. For weeks now, the General Counsel has apparently been telling the mayor, the City Council, the media and the public that he has issued a binding opinion when that is not the case. Why has no binding opinion been issued? I suspect it’s because the General Counsel has no confidence in its legal analysis and is trying to create some wiggle room if he’s ever called on it.

Second, there is the fact that the General Counsel’s analysis of the Florida Statutes’ section 212.055(6) would make that statute unconstitutional. Section 212.055(6)(b) states that the school board’s referendum “shall be placed on the ballot by the governing body of the county.” The General Counsel’s memorandum states that it is this language that permits the mayor and the City Council to demand changes to the school board’s plan.

That demand is blatantly unconstitutional. The Florida Constitution gives the school board the exclusive power to determine how the sales tax revenues will be spent. Specifically, Article IX, Section 4(b) states that “the school board shall operate, control and supervise all free public schools” within its district. Thus, if Mayor Lenny Curry or the City Council refuses to put the school board’s referendum on the ballot until the board gives in to their demands, that action would clearly violate Florida’s Constitution.

This conclusion is supported by the court’s decision in Duval Cty. Sch. Bd. v. Bd. of Educ., 998 So.2d 641 (Fla. 1st DCA 2008). In that case, the court was considering the constitutionality of Section 1002.335, which permitted the State Board of Education to designate a new commission to authorize charter schools in all of Florida’s school districts. The court held that the statute was unconstitutional because it interfered with the constitutional duties of school boards across the state to control the charter schools in their districts. Applying the same reasoning here, it is clear that any refusal by Curry or the City Council to put the referendum on the ballot would be unconstitutional because it would clearly interfere with Duval County Public Schools’ constitutional right to operate, control and supervise all of the free public schools in the county.

Third, the General Counsel may claim that he has the power to issue binding opinions that would prevent the school board from questioning his decisions or filing lawsuits. There are two problems with that argument. First, the Florida Constitution clearly gives the school board the power to operate, control and supervise the public schools in Duval County. Second, Section 1001.41(4) specifically states that school boards in Florida have the right to sue and be sued. Consequently, no binding opinion or memorandum from the General Counsel can change these facts.

In any event, it is apparent that the school board must challenge the actions of Curry, the General Counsel and some members of the City Council now. The Duval County school board must be aware that it is not fighting for just the students of Duval County. This bad precedent is already being deployed outside Duval County. The Clay County Commission recently rejected a request by the Clay County School Board to authorize a similar referendum on the mistaken belief that the Jacksonville General Counsel memorandum gave it the right to dictate the plans of the Clay County School Board. It is clear that the faulty reasoning in the memorandum is going to be used by mayors, city councils and county commissioners across the state to prevent school boards from exercising their Florida Constitutional and statutory rights to “operate, maintain, and control all free public schools” in the state. Duval County Public Schools has to realize what is at stake and fight Mayor Lenny Curry and the City Council now.

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Bork is a Jacksonville-based attorney with more than 20 years’ experience.