Filing # 101715331 E-Filed 01/15/2020 03:18:56 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY. FLORIDA CIVIL DIVISION: CV-G THE SCHOOL BOARD OF DUVAL COLTNTY, FLORIDA, and DUVAL TEACHERS L]NITED, CASE NO.: 2019-CA-6561 Plaintilfs. vs. CITY OF JACKSONVILLE. Defendant. ORDER DENYING DEFENDANT'S MOTION TO STRIKE AND DROP PARTY PLAINTIFF AND MOTION TO DISOUALIFY OUTSIDE COUNSEL THIS CAUSE having come before this Court on the City of Jacksonville's ("City") "Motion to Strike and Drop Pa(y Plaintiff' ("Motion to Strike") and "Motion to Disqualify Outside Counsel" ("Motion to Disqualify"), both fited on September 25,2019, and having reviewed the motions, memoranda and authorities submitted in opposition and support, and heard arguments ofcounsel, the Court finds and concludes as follows herein. Background The Duval County School Board ("School Board") passed a resolution calling for the levy of a half-cent sales tax to be placed on the ballot, and requested the Jacksonville City Council ("City Council") direct the Supervisor of Elections to hold a county-wide special election. In response, the General Counsel for the City of Jacksonville ("General Counsel") issued an opinion that the Counsel Jacksonville, City Council may refuse to place such a surtax on a ballot. Op. Gen. Fla. l9-03 (2019)("Opinion 19-03'). The City Council followed this advice, and the School Board filed suit against the city. The city argues that opinion l9-03 binding upon the School Board pursuant to section 7.202 of the Jacksonville (..Charter"). In response, the School Board contends city is charter it is not a part of the "consolidated government," and is only bound by the Charter where there is an explicit limitation of its powers. In the instant motions, this court must decide whether the School Board has the authority to file a complaint against the City and to retain its own counsel to pursue its claims. The crucial question this cou( must decide in these matters is whether the School Board was consolidated as part ofthe City ofJacksonville after the adoption ofthe Charter. Analysis L Consolidation, The General Counsel And The Duval County School Board a. Consolidation The Jacksonville Consolidation Amendment to the Florida Constitution authorized the Legislature to "establish, alter, or abolish a Municipal corporation to be known as the city of Jacksonville, extending territorially throughout the present limits of Duval county'" Art' vlll $ 9, Fla. Const. (1934).r Pursuant to this authority, the Legislature established the Charter of the I The Jacksonville Consolidation Amendment is incorporated by reference into Article Eight, Section Six(e) of the Florida Constitution. The amendment, in its entirety, reads as follows: The Legislature shall have power to establish, alter, or abolish, a Municipal corporation to be the city of Jacksonville, extending tenitorially throughout the present limits of Duval County, in the place of any or all counfy, district, municipal and local govemments, boards, bodies, and offiiers, constitutional or statutory, legislative, executive, judicial, or administrative, and shall prescribe the jurisdiction, powers, duties and functions ofsuch municipal corporation, its legislativi, executive, judicial and administrative departments and its boards, bodies and officers; tJdivide the territory included in such municipality into subordinate districts, and to prescribe a just and reasonable system oftaxation for such municipality and districts; and to fix the liability of iuch municipality and districts. Bonded and other indebtedness, existing at the time of the establishmeni of such municipality, shall be enforceable only against property theretofore taxable therefor. The legislature shall, fiom time to time, determine what portion of said municipality is a rural area, and i homestead in such rural area shall not be limited as if in a city or town. Such municipality may exercise all the powers of a municipal corporation and shall also be recognized as one of the legal political divisions of the State with the duties and obligations of a county and shall be entitled to all the powers, rights, and privileges, including representation in the state Legislature, which would accrue to it if it were a county. All property ofDuval county and ofthe known is 2 City of Jacksonville in 1 967, and most recently readopted it in 1992. Ch. 92-341, Laws of Fla. The charter established the City ofJacksonville as follows: The county government ol Duval County, the municipal government of the City of Jacksonville, the Duval County Air Improvement Authority, the east Duval Mosquito Control District, the northeast Duval County Mosquito Control District, and all boards, bodies, and officers thereof were and are consolidated into a single body politic and corporate pursuant to the power granted by former s.9 of Article VIII of the Constitution of 1885, as amended, of the State of Florida, which section was continued by and remains in full force and effect under s. 6(e) of Article VIII of the Constitution of the State olFlorida. Id. at Art. l, $ 1.01(a). The City retained all of the "rights, capacities, privileges, powers, franchises, immunities, liabilities, obligations, and duties of the former govemments and former special districts named." Id. b. The General Counsel The Charter also established the Office of General Counsel ('OGC'), responsible "for fumishing legal services to the city and its independent agencies." Id. at Art. 7 , Ch. 2, $ 7.201 . The General Counsel is "the chief legal ofhcer for the entire consolidated govemment, including its independent agencies." Id. al $ 7.202. The Charter vests in the General Counsel the power to municipalities in said county shall vest in such municipal corporation when establish as herein provided. The offices of the Clerk of the Circuit Court and Sheriff shall not be abolished but the Legislature may prescribe the time when, and the method by which, such offices shall be filled and the compensation to be paid to such officers and may vest in them additional powers and duties. No county office shall be abolished or consolidated with another office without making provision for the performance ofall State duties now or hereafter prescribed by law to be performed by such county officer. Nothing contained herein shall affect Section 20 of Article III ofthe Constitution of the State of Florida, except as to such provisions herein as relate to regulation the jurisdiction and duties of any class of officers, to summoning and impaneling grand and petit jurors, to assessing and collecting taxes for county purposes and to regulating the fees and compensation of county officers. No law authorizing the establishing or abolishing of such Municipal corporation pursuant to this Section, shall become operative or effective until approved by a majodty of the qualified electors participating in an election held in said County, but so long as such Municipal corporation exists under this Section the Legislature may amend or extend the law authorizing the same without referendum to the qualified voters unless the Legislative act providing for such amendment or extension shall provide for such referendum. 3 render legally binding opinions which "shall constitute the final authority for the resolution or interpretation ofany legal issue relative to the entire consolidated govemment." 1d. The services of the OGC are "central services or services of the central department, as the case may be." Id. at $ 7.201. "Atl of service the services provided by the central services department and the personnel department shall be utilized by . . all independent agencies, except when otherwise provided by law or directed by the council." 1d. at $ 7.104. The Charter specifically directs the School Board to use the "services of the central service department," unless "otherwise directed by the council.".Id' at Art . 13, $ 13.09. c. The School Board It is not in dispute that the School Board existed prior to the adoption of the Charter. It is also not in dispute that the School Board is referenced repeatedly in the Charter. However, the actual character and natue of its inclusion is in dispute in this case. Article l, $ 1.01(a) of the Charter specifically identifies the then-existing county and municipal governments, specific authorities and districts, and "all boards, bodies, and officers thereof;' (emphasis added) The Schoot Board, under its then-existing name Board of Public Instruction - is not specifically - the Duval County mentioned. Thus, to have been consolidated, it would have to be a board or body of one of the entities specifically mentioned. The School Board contends it iS a form of county govemment but not the county govemment that was consolidated into the City of Jacksonville. The City argues the Charter created the School Board as an independent agency Section 18.02 ofthe City.2 of the Charter provides that "[flor all purposes of general law, the consolidated govemment shall constitute a county and municipality." Nothing in the Charter explicitly consolidated the School Board with the ' Motion to Disqualify, p. 2; Motion to strike, pp.7, 4, 4 City. Thus, the School Board was only consolidated with the City if its predecessor was a part of the "county govemment" prior to the Charter's enactment. However, counties are political subdivisions established by the legislature. Id. at Art. VI[, g 1(a). Their govemments are established by a charter adopted by the electors of the county. Id. at $ l(c). There are only five constitutionally established county officers: (l) the sheriff (2) the tax collector (3) the property appraiser (4) the supervisor of elections, and (5) the clerk of the circuit court. 1d. at l(d). School districts are also established by the Florida Constitution, but they are not listed as a part of the local government. Article IX, $ 4(a), Fla. Const. Just as the county officers are delineated by the constitution, every district has a board "composed of five or more members." 1d. II. The School Board Was Not Merged Or Consolidated Into The Cify Of Jacksonville. The Charter did not create the School Board, but continued charter also provided that "[t]he Duval county board it. Id. at Art. 13, $ 13.09. The of public constituted under general and special law shall continue instruction as presently in full force and effect and be responsible for the public education system in Duval County, and all general and special laws applicable to the [Board] shall continue in full force and effect except as herein expressly provided to the contrary." Id. at Art 14, $ 14.01. The Charter further defines the Board as an "independent agency" along with "the Jacksonville Port Authority, the Jacksonville Transportation Authority, the Jacksonville Electric Authority, the Jacksonville Downtown Development Authority, and the Jacksonville Police and Fire Pension Board of Trustees." Ch. 92-341, Laws of Fla. at Art. 18, $ 18.07(d). However, unlike the School Board, these agencies were created by the Charter. E.g., id.at Art. 20, $ 20.01; Art. 2l , $ 21 .01; Art. 22, $ 22.01. 5 Nothing in the historical texts of the constitutions of Florida suggests that school boards are a part of, or incorporated into, the county govemments of Florida, which operate to provide the ordinary and typical purposes and functions of local govemment. Counties and school boards are distinct entities located in separate parts ofthe constitution. Further, the Charter itself lists the entities that comprised the "former government," and the School Board is not included. Ch.92-341, Laws of Fla. at Art. 18, $ 18.07(c). Moreover, the Florida Constitution of 1885 contains no general provision for the consolidation of any govemmental units. Article Seven, Section Three of The Florida Constitution consolidate "the govemment therein," but there of 1968 provides the legislature with the power to of a county and the govemment of one or more municipalities is no provision for the consolidation of school boards with counties, municipalities. or both. This is not surprising. The Florida legislature has provided that each of the counties of the state comprises separate school districts. The Florida School Code of 1939 provided that each county constitutes "a unit for the control, organization, and administration of schools." Ch. 19355, $ 401, Laws of Fla. ( 1939). The goveming model of the public school system throughout the history of this state has been one of independence from county and municipal govemments, with overall control vested in a state board of education, and day-to-day control in local school boards. Each is, ultimately, controlled by the legislature, as provided and limited by the state constitution. ,Ses $ 1011, Fta. Stat (2019) (establishing specific provisions goveming taxation, finance, and budgetary matters for district school boards). The City also argues that school board members are county officials, so the School Board was consolidated by virtue of the Charter. Again, the distinction between "county" officials and local county govemments is significant. Both parties cile 6 In re Advisory Opinion to the - Governor School Board Member case, the Supreme Court - of Florida Suspension Authority, 626 So.2d 684 responded (Fla. 1993). In this to a request for opinion from the govemor regarding his power to suspend a school board member. The single question presented by these letters is whether a school board member is a "county" officer, in which event he or she may be suspended only under article IV, Section 7(a) [of the Florida Constitution] or a "district" officer, in which event the school board member could be suspended under the statutory authority ofsection I12.51, Florida Statutes (1991). ld. at 68'7 . In tracing the history of the constitutional provisions regarding suspension of public officials, the court noted the govemor's power to remove elected officials had been restricted by the 1968 amendments to the Florida Constitution. Id. at govemor had the authority to suspend any appointed 687 -88. Before these revisions, the or elected official not subject to impeachment. 1d. Starting with the 1968 version of the constitution, this authority only applied to "county officers." Id. The govemor's ability to remove other officials was limited. Id. Even though school board members are not "county officers" as defined by Article VII, both the court and previous govemors had "considered elected school board members to be .county offrcers' for purposes of suspension." Id. at 688. Rather than determining that the suspension provisions of Article IV should be narrowly construed to mean that the govemor has no authority to suspend because "district officers" is not an included term, the Court determined to construe Article IV more broadly: We reach this conclusion because it is apparent that the public looks at both school board members and county commissioners as "county" officials, who have equivalent power and authority, albeit in different local govemment spheres. 7 Id. at 689. However, this holding did not make school board members part of the "county govemment." Id. To lhe contrary, the court found that school board members and county officers occupied separate spheres and operated under separate govemmental units. /d. If the School Board was not explicitly consolidated, the City implied when the Jacksonville Consolidation Amendment is argues that consolidation is compared to other, similar amendments. Specifically, the electors of Dade County were granted the power to "merge, consolidate, and abolish . . . all municipal corporations, county or district govemments . . . or other govemmental units whose jurisdiction lies wholly within Dade County, whether such govemmental units are created by the Constitution or the Legislature or otherwise, except . . . the Board of Public Instruction of Dade County." Art. because the Legislature VIII, $ 6(e) n. 11. The City reasons that- explicitly restricted Dade County's ability to abolish or consolidate its school board-the omission of the same restriction from the Charter implicitly indicates their intention that the school Board was to be consolidated. However, the Jacksonville Consolidation Amendment gave the Legisloture the power to "establish, alter or abolish," while the Dade County Home Rule Charter Provision explicitly vested the electors of Dade County with this power. 1d. The delegation of extra powers required extra provisions; the absence of provisions is not evidence ofpowers. The legislature had the constitutional authority to require the School Board to utilize the City's central services. School boards are included within the legislative branch of state govemment. Canney v. Board of Public Instruction oJ Alachua County,278 So 2d 260 (Fla. 1973). It is clear from the Charter that the legislature considered the School Board's role in a consolidated Jacksonville. For example, the Legislature required the School Board to utilize the City's central services. Ch. 92-341, Laws of Fla, Art. VII, $$ 7.01, 7'02). However, 8 the legislature also approved provisions that maintained the school Board's independence: The Superintendent of Schools shall be appointed by the School Board ($13.07); the School Board's budget is not subject to review by City Council ($ 13.10); and, the School Board continues to own its real property and can transfer it to the City ($13.12). As the School Board correctly points out, the Charter includes multiple references to the judiciary of Duval County. In fact, it is described as one of the three branches ofthe consolidated govemment, though there can be no doubt that it was not created by the Charter, or merged into the consolidated govemment, such that it has no independent existence. Rather, it is a constitutional and statutory entity independent ofthe control ofthe City govemment. This court finds that the School Board enjoys a similar m. status-sharing resources with the City while being independent from it. The School Board Can Maintain This Action Against The City And Retain lts Own Counsel To Do So. Having now determined that the School Board was not consolidated into the City of Jacksonville, the questions remain as to whether the School Board is, nonetheless, bound to utitize the OGC in the circumstances of this case, and whether it can bring suit against the City. The City contends that the School Board cannot pursue this action against it for several reasons, including that that the Ordinance Code bars any actions by one agency of the consolidated govemment against another, and that Opinion 19-03 forbids the prosecution of this action by the School Board. a. The City and the School Board are not "agencies. Section 108.503 of the Ordinance " Code bars any "agency of the consolidated govemment" from instituting an action against another agency of the consolidated govemment. ,,Simply put, in ordinary circumstances, the consolidated govemment cannot sue itself." (Motion to Strike, p. 6). In support of this argument, the City cites to the cases of Gwendolyn Gibson 9 v. Richard A. Mullaney, Case No. 0l-3098-CA (4th Jud. Cir. 2001), Stephens v. Geoghegan,702 So.2d 517 (Fla.2d DCA 1997), andGeidel v. City ofBradenton Beach,56 F.Supp.2d 1359 (M.D. Fla. l99l). The City argues that each of these cases stand for the proposition that suits against public officers in their individual capacities are really suits against the govemment entity itself, which means that the government is suing itself. However, these cases are distinguishable from the case at bar because there is no party in this action suing or being sued in an individual capacity, or ostensibly so. This case is brought by an independent agency that was not consolidated into the City ofJacksonville, and it is against the City, not an agency ofthe City.3 b. The School Board is not Bound by Opinion 19-03 In support of its position that the opinion of the General Counsel binds the school board and is not subject to judicial review, the City cites the cases of Hamm v. Delaney, Case No. 97- 34-AP, 01-3098-CA (4th Jud. Cir.), and New Life Christian Fellowship of Jacl