JACKSONVILLE, Fla. — Media was excused from the courtroom Thursday while attorneys questioned a witness who is set to testify in the trial of ex-JEA CEO Aaron Zahn and ex-JEA CFO Ryan Wannemacher. Attorneys from local media outlets, including Jennifer Mansfield, representing First Coast News and the Florida Times-Union, are working to remedy the issue.
Jeff Panger, an analyst for S&P Global Ratings, was being questioned without the jury present, to ensure his testimony would not infringe on Zahn and Wannemacher's Fifth Amendment rights.
Most of these hearings, referred to as Kastigar hearings, took place before the trial began Feb. 20. However, Panger's hearing was scheduled to take place right before his testimony, because he is not local to Jacksonville.
Mansfield approached the court and said Kastigar hearings that take place after jury selection should be open to the public and the press.
Federal Judge Brian Davis for the Middle District of Florida requested that Mansfield file a motion to open future hearings to the press. He stipulated that there was nothing to be done for the missed hearing Thursday.
Several more Kastigar hearings are expected to take place in the coming weeks of the trial, including testimony from NextEra Energy, who is expected to talk about NextEra's potential purchase of JEA -- key testimony to solidify arguments that the executives narrowly focused on a sale. If Mansfield's motion is unsuccessful, the press will be shut out from these hearings, which offers the opportunity to learn what testimony witnesses will offer.
Who was being questioned?
Panger was previously the lead analyst working on S&P's ratings of JEA. In 2018 and 2019, the years Zahn was in power, he was involved with JEA but was not the lead analyst.
Jeff Orfano, the former treasurer of JEA, mentioned Panger in his testimony at his own Kastigar hearing, the Florida-Times Union reported.
Federal prosecutors argue Zahn pushed a narrative that JEA was facing insurmountable challenges in the future and needed a plan -- like a sale -- to save the utility, and that this narrative was not true. Oranfo testified Panger sent an email to Wannemacher that poked holes in this argument and "angered" him. In the email, Panger told JEA he found "no other utility suggesting this level of decline in sales related to energy."
The press will be allowed in for Panger's testimony before the jury.
What is a Kastigar hearing?
A Kastigar hearing ensures that a witness will not infringe on a defendant's Garrity rights, which are protected by the Fifth Amendment.
"Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers," longtime Jacksonville Attorney Curtis S. Fallgatter explained. "This protection stems from the Fifth Amendment to the United States Constitution, which states that the government cannot compel a person to be a witness against himself. As a public employee, you can be fired if you fail to cooperate with an agency (administrative) investigation. Thus, any statements made, to avoid losing your job, are protected – since they are basically being “compelled.” Garrity balances that compulsion by ruling that such statements (or evidence derived from them) cannot be used in a subsequent criminal prosecution."
Essentially, testimony that has been colored by any statement that Wannemacher and Zahn made while being questioned by JEA or the Office of General Council is not admissible.
That issue has arisen in this case, since both Zahn and Wannamaker were questioned by the JEA, during the internal investigation of the performance plan and attempted sale of the JEA.
Mansfield will file a motion on behalf of First Coast News and the Florida-Times Union.