JACKSONVILLE, Fla. — A chain of emails exchanged between the city of Jacksonville’s Ethics Director, the Office of General Counsel and JEA call into question the very thing JEA has been accused of lacking for the past two years -- transparency.
The emails released to First Coast News show a debate over note-taking by Ethics Director Carla Miller at closed-door meetings over JEA’s Invitation to Negotiate, or "ITN", bidding process, which JEA launched in October in an effort to sell the public utility, despite pushback.
In the emails, Miller is forced to defend her position as Ethics Director and describe the importance of being able to keep records of JEA’s activity, especially when their meetings were being held privately.
From the last week of November into the first week of December, JEA held private strategy meetings in which Miller attended. These meetings with advisers were in preparation for their final negotiation meetings with bidders, which took place at an undisclosed location in Atlanta, Georgia from December 10th through December 13th. Miller planned to attend but makes it clear that she didn’t receive a warm welcome at first.
In the days leading up to the trip to Atlanta, Miller explained why it was important that she attend, to ensure that everything was handled ethically. But after she was given permission to attend, she was told she couldn’t take notes. She pushed back, insisting that she would not be able to retain all of the information from several days of meetings without taking notes. She also stated that it was, in fact, her right and her job to be able to take notes.
The debate over her notes didn’t end there. She was informed that she could not keep her notes, but rather, her notes would be collected by JEA’s attorney at the end of the day.
According to the email, Jason Gabriel, the city’s top attorney with the Office of General Counsel, appeared to side with JEA and questioned Miller on the necessity of note-taking – and note-keeping. Miller once again pushed back, but with no answers in sight just two days before the Atlanta meetings, Miller wrote an email to Gabriel, which said in part:
"This is a matter of great importance to me as it reflects on the integrity of my office. My duty under the Code is to: 'Investigate, review and report on City issues, and past, present and proposed … records, contracts and transactions all as related to the prevention and remediation of conflicts of interest, fraud, waste, and corruption” and “where possible violations of any state, federal or local law are suspected, to notify the appropriate civil, criminal or administrative agencies, and assist those agencies as appropriate.'
I must have access to relevant JEA ITN documents and the ability to keep and retain notes of proceedings in order to do my job. Just like the IG does. I should not be restricted in doing so. If I allow that to happen, my office would lose the trust of the citizens and of the Council."
It became such an ordeal, Miller went on to write Gabriel that the City Council President was prepared to get involved if needed:
"I would have liked to have had this resolved informally with you, but we are running out of time and the issue is too important. The last City Council meeting for the year is this Tuesday. There will be a lot of activity on the JEA ITN before the next Council meeting in January. There needs to be clarification on my duties under the Code in an emergency bill, as proposed Thursday by the Council President. He is willing to sponsor this legislation. I would hope that your office and the Mayor support this legislation. It would be helpful to the Ethics Office to have your support."
Joseph Rogan, Chairman of the Ethics Commission, echoed Miller’s concern over the “restrictions” being placed on her. Rogan sent his own email out on the situation, expressing concern to City Council President Scott Wilson and asking that Wilson help protect the duties of the Ethics Commission. Rogan wrote in part:
"My understanding is that JEA’s outside counsel and OGC [Office of General Counsel] have called into question the ability of the Executive Director of the Office of Ethics, Compliance and Oversight to observe and take notes in JEA ITN meetings. How that question arises from the language cited by JEA’s lawyers—the “confidentiality clause” of 602.621—is beyond me, but I strongly suggest emergency legislation to ensure Ms. Miller can fulfill her oversight function. She cannot participate halfway in the ITN meetings or she will fail to fulfill the duties she owes to the citizens."
In response, Council President Scott Wilson told Rogan and Miller that he would meet with Gabriel to discuss the issue the next morning. He also reminded them that “in order to enact such legislation” prior to their next city council meeting, it “requires the support of Mayor Lenny Curry”.
In the end, they would not have to follow through with any emergency legislation because that evening around 6 p.m., the night before the Atlanta trip, Miller received a response from JEA Vice-President Sherry Hall telling her that she would be “provided access to all information relating to the ITN” after all.
The next morning, Tuesday, December 10th, Miller also heard back from the Office of General Counsel confirming her access to JEA documents and granting her the right to take, and keep personalized notes. However, she would have to sign a confidentiality agreement that would prohibit her from sharing certain “protected information” discussed in the meetings, such as “trade secrets”.
According to Jacksonville Ordinance, the Ethics Commission is meant to exercise their powers to hold the powerful accountable, it says in part, “There needs to be a proactive approach in strengthening the emphasis on ethics and in guiding City officers and employees in upholding them”. It also states the city’s attorney, such as Gabriel, is meant to help with that responsibility.
Two weeks ago, Miller released some of her notes, but it wasn't until Tuesday, January 7th, when she released the rest of her notes from every closed-door meeting on the ITN bids, including the meetings that took place in Atlanta. She intended on releasing them sooner, but she said the Office of General Counsel wanted to retain her notes to allow for bidders to redact any information they deemed confidential. However, Miller disagreed with the decision to have her notes detained.
“I didn’t think any of the material fits into an exempt category — I thought, and still do, that 100% of it is a public record,” wrote Miller. “But, there are some redactions in my report pending additional discussion between OGC and the bidders.”
Her notes offer the most insight into the private meetings between JEA and the negotiators over the past month.
In her notes from a meeting on December 11th, she writes that some information was deleted regarding Duke Energy, per their request. In that meeting, Miller notes it was made clear from the get-go that negotiator Stephanie Burch wanted to speed up the timeline and have all contracts signed by the end of January. At the end of the meeting, Miller writes, “this is the first time the factor of “transparency” to citizens was mentioned as a reason for the timeline”.
Miller notes that Burch, the mayoral official designated as the lead negotiator, did not anticipate any change to their timeline of January as the new deadline. According to Miller’s notes, Burch says, “transparency is important, we want to wrap up procurement”.
In a discussion with Emera on December 12th, Miller again notates Burch’s insistence on a January deadline, followed by a reaction of surprise from Emera, which said the new deadline was “challenging”.
Miller writes:
"S. Burch: Process—we need signatures on a document by end of January—driven by transparency to the Community.
Respondent [Emera]: Surprised as to sudden change; timeline impractical. They need the process letter. We are interested and want to provide the best proposal, but time is needed."
Emera wasn’t alone. The majority of bidders made it known that the January timeline was difficult. Some companies were only seeking the water or electric side, so they were asked to find a partner by the end of January.
American Water Works, Inc. told negotiators, “it is a complicated time frame to get a partner”.
At one point, bidder JEA PPP asks Zahn about how a city council vote on January 14th would impact their timeline since they were expected to vote on ending the ITN process. Zahn responds that “there are emotions” but they can’t be sure what city council will do and the timeline is ultimately up to the negotiators.
MIRA also expressed concern over the timeline, describing it as “extremely challenging”.
NextEra, the parent company of Florida Power and Light, was one of the few bidders who did not find the timeline challenging. Miller's notes made it clear that NextEra was a frontrunner in the bidding process.
On December 16th, Miller notes that Melissa Dykes takes over the meetings, instead of Aaron Zahn. The next day, she writes that Zahn is “terminated”.
In the meetings that followed the Atlanta trip, the focus remains on a push for a January deadline. Burch makes it clear they are trying to narrow down the bidders with such a timeline, saying, ‘hopefully we will only have a few left because of the timeline’, according to Miller’s notes.
RELATED: JEA unanimously approves resolution to cancel ITN process after spending at least $10 million
As for the costly Plant Vogtle liability, Miller says they were supposed to discuss it with all bidders, but as of Dec. 17 a meeting still had not been scheduled. Attorney Lynn Rhode was organizing the meeting, but then she resigned from the Office of General Counsel on the 19th.
Eventually, on December 18th, Miller made her feelings clear to the Office of General Counsel about JEA’s confidential meetings and her reaction to how they unfolded. She wanted the process to end, immediately. Miller wrote:
"It shows the impact of the timeline on the Respondents. I don’t know for sure, but I believe the deadline (end of January) may have been created by Aaron Zahn. You can see in the attached notes how it has been discussed in the confidential meetings.
Based upon the Sunshine issue (which we will discuss further in a bit), the timeline, the removal of the CEO, the City Council actions and the Performance Plan (PUP), it is my recommendation that the JEA ITN process be terminated immediately. The Respondents are going into an intense stage in the next 2-3 weeks. If there is a time to 'pull the plug' it is now."
Five days later, on the morning of December 23rd, Mayor Curry announced that he would be calling for an end to the entire bidding process. In Miller’s notes from that day, she writes that Burch received a news alert “that the Mayor was making a statement on the ITN”.
JEA interim CEO Melissa Dykes has estimated the ITN process cost approximately $10 Million dollars. First Coast News has requested a breakdown of those numbers, as well as the entire transcript of the ITN meetings over the past several months, including the meetings in Atlanta. The requests are still being processed.
Meanwhile, formal investigations are underway by multiple agencies, including the State Attorney’s Office and the Office of General Counsel.
As of right now, Zahn remains on administrative leave. The JEA Board initially scheduled a special meeting for January 6th to make a decision on his contract, but the Office of General Counsel postponed the meeting “until further notice” as they needed to collect more information in their investigation. Until a decision is reached, Zahn will continue to collect his regular salary, which JEA confirms amounts to $2,001.51 per day.
First Coast News asked Mayor Curry if he supported a severance package deal for Zahn, or if he agreed with JEA Board Chair April Green’s suggestion that Zahn be terminated “with cause”.
In response, the mayor did not say which outcome he preferred, but his office released a statement on his behalf:
"Mayor Curry has full faith in the JEA board that they will make the right choice after an investigation is complete and they review the findings. He will not be commenting any further at this time."