Duval County School Board Chairwoman Lori Hershey sat in her office Tuesday morning ahead of a workshop meeting with board members when she received an email from the Jacksonville General Counsel's Office. It was about whether the Jacksonville City Council could reject the board's request for a sales tax referendum.
The answer, General Counsel Jason Gabriel said, is yes.
Gabriel's binding legal opinion said the City Council controls when a half-cent sales tax referendum for schools goes before voters. The council also decides whether there will be a referendum at all, Gabriel determined.
"We knew it was coming," Hershey said. "I didn't expect it to be different ... but what struck me was the David and Goliath stuff."
In Gabriel's letter explaining the opinion — which he sent to the City Council and School Board — the attorney uses a scenario from the biblical story of David and Goliath to illustrate how the use of the word "shall" can have different meanings depending how it is used in a sentence.
"Consider the following two sentences," Gabriel wrote. "(1) David shall place the the slingshot on the table. (2) The slingshot shall be placed on the table by David. In the first example, David is commanded to place the slingshot on the table. In the second example it is directed that David shall be the one to place the slingshot on the table, and no other, if it is to be placed on the table at all."
Gabriel said in the same way as the second example, state law says the Jacksonville City Council is the entity that would put a sales tax referendum on the ballot. But the council is not required to put it on the ballot because state law also gives the council the authority to leave it off the ballot by rejecting the School Board's request.
"City Council cannot be mandated to approve a tax," Gabriel wrote in the cover letter for his 16-page opinion. "It cannot be mandated to approve a referendum for a tax. That is not to say that it shouldn't be approved; that is a policy decision. The point is that City Council has the authority to weigh the legislative matters before it and makes its decisions accordingly."
Gabriel discussed his opinion Tuesday at the City Council meeting and invited the council to ask state Attorney General Ashley Moody to weigh in with her own opinion. The council voted 19-0 to make that request, which could result in a statewide advisory opinion covering all Florida school districts.
City Councilman Rory Diamond said seeking Moody's review is a "belt and suspenders" approach to Gabriel's determination. City Council member Matt Carlucci praised Gabriel's willingness to have his opinion reviewed at the state level. Carlucci said whether people agree with Gabriel's opinion, the fate of the referendum "boils down to our decision."
For making that decision, the School Board and City Council are scheduled to have a joint meeting Wednesday morning to discuss the sales tax referendum.
Over the past few months, the two groups have struggled to see eye-to-eye over the half-cent sales tax for school construction, maintenance, renovation and security upgrades.
In July, City Council members sent over 100 questions to the School Board — including clarifications on how much money charter schools would receive, when and where community meetings were held, and enrollment numbers. The district sent a package with responses it deemed relevant two weeks later.
In an email obtained by the Times-Union, City Council President Scott Wilson voiced his hope to Hershey to move toward an Aug. 27 vote by the City Council. Wilson said that after council members pose questions Wednesday, school district staff would have five days to clear up any "lingering questions" by the time the City Council's finance and rules committees meet next Tuesday to possibly send the legislation to the full council for a final vote.
“I know council members have multiple questions about the plan,” Wilson wrote. “My hope is that DCSB [Duval County School Board] staff can answer those questions in more detail. Your responses were very complex and members might want a more simplified answer.”
Wilson said the district should be prepared to answer questions about sharing sales tax revenue with charter schools, something the board re-addressed at its Tuesday meeting.
At Tuesday's School Board workshop, Hershey compared the board's approach when answering questions to parenting.
"Sometimes, you answer a question and if it’s the answer they don’t like, asking it again won’t make for a different answer," she said. "It’s like parenting in a sense."
In other Florida counties, attorneys have advised county commissions that they cannot reject a school board's request for for a referendum.
Clay County residents will learn this week how much oversight its County Commission has over the School Board. A lawsuit filed by the School Board asks a judge to order the Clay County Commission to put a referendum on the ballot for a special election this year. The Clay County Commission agrees it must put the referendum on the ballot but argues it has discretion about having that vote in the November 2020 general election.
Gabriel's opinion echoes a months-old memorandum from the Office of General Counsel suggesting City Council's referendum oversight. Gabriel argues that state law gives county commissions or, in the case of Duval County, the Jacksonville City Council sole authority to put the sales tax referendum on the ballot. The School Board can only make the request.
To combat that view, the School Board sought outside counsel from a team of local lawyers: W.C. Gentry, Hank Coxe and Scott Cairns.
That trio said City Council's only role is "ministerial," meaning it just carries out the School Board's request. In that view, the "shall" language in state law is a command to City Council.
According to Hershey, Gentry, Coxe and Cairns are providing the legal help pro bono and there's no formal contract.
Still, that doesn't mean a lawsuit is out of the question.
"All options are still on the table," Hershey said. "We are state constitutional officers. We've been charged with the responsibility of public education and all we can do is follow through with those things."
School Board members are looking forward to Wednesday's three-hour meeting and hope it will close a long-winded quest for funding.
"Let’s get these questions answered and let's move on," board member Elizabeth Andersen said.
"I just hope it's not a circus," Hersey added.
"No board has dared to achieve the things we’re trying to achieve," she said. "We still have to fight the good fight."
She then added with a smirk, "You know, in this scenario, David only needed one stone."
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